Rawls's Political Liberalism [Pilot project. eBook available to selected US libraries only] 9780231527729

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RAWLS’S POLITICAL LIBERALISM

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Columbia Themes in Philosophy Series Editor: Akeel Bilgrami, Johnsonian Professor of Philosophy, Columbia University

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RAWLS’S POLITICAL LIBERALISM

Edited by Thom Brooks and Martha C. Nussbaum

c olumbia uni ver sit y pre ss n e w yo r k

Columbia University Press Publishers Since 1893 New York  Chichester, West Sussex cup.columbia.edu Copyright © 2015 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data Rawls’s political liberalism / edited by Thom Brooks and Martha C. Nussbaum. pages c.m. — (Columbia themes in philosophy) Includes bibliographical references and index. ISBN 978-0-231-14970-9 (cloth : alk. paper) — ISBN 978-0-231-14971-6 (pbk : alk. paper) — ISBN 978-0-231-52772-9 (e-book) 1.  Liberalism—Philosophy  2.  Rawls, John, 1921–2002.  I.  Brooks, Thom, editor of compilation.  II.  Nussbaum, Martha Craven, 1947– editor of compilation. JC574.R39 2015 320.51—dc23 2014034108 Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 p 10 9 8 7 6 5 4 3 2 1 Cover design: Noah Arlow References to websites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

CONTENTS

preface

vii

Thom Brooks and Martha C. Nussbaum list of abbreviations

Introduction

ix



Martha C. Nussbaum

1. Changing Constructions  Onora O’Neill 2. Legitimacy and the Project of Political Liberalism Paul Weithman



3. Isolating Public Reasons  Jeremy Waldron 4. The Capabilities Approach and Political Liberalism  Thom Brooks 5. The Priority of Liberty: Rawls and “Tiers of Scrutiny”  Frank I. Michelman index



PREFACE Thom Brooks and Martha C. Nussbaum

John Rawls’s Political Liberalism is one of the most important works of political philosophy published in the twentieth century. It offers a revision of Rawls’s theory of justice while defending powerful new arguments for a way of framing political principles designed to solve the problem of political stability in light of the fact of reasonable pluralism. A critical reassessment is timely, given the twentieth anniversary of Political Liberalism’s original publication in 1993. This collection of essays sheds new light on this work and its legacy, engaging with several central issues in Rawls’s work from different perspectives. Together, they confirm the continuing importance of Political Liberalism in contemporary debates and the need for deep engagement. We begin with a wide-ranging introduction to Political Liberalism by Martha C. Nussbaum. She identifies its key motivating ideas and powerful relevance for pressing contemporary issues, such as religious liberty and equal respect for diverse views. Nussbaum clarifies the often misunderstood relationship between Political Liberalism and Rawls’s earlier A Theory of Justice. The problem of stability is not a focus of A Theory of Justice. Nor is Rawls’s discussion in Political Liberalism incompatible with A Theory of Justice, although the latter is revised in some important

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respects. Nussbaum’s introduction also draws attention to the rich connections between Rawls’s work and its historical antecedents, such as the contributions of Hobbes, Locke, Rousseau, and Kant. Our book then proceeds to consider important topics and rich debates in the chapters that follow. Onora O’Neill examines Rawlsian constructivism and questions concerning citizenship and “who counts?” that reflect the idea of society as “bounded” and that became more central to Rawls’s approaches to justifying principles of justice. Paul Weithman discusses political liberalism in terms of legitimacy and Rawls’s “political turn,” which highlights serious failings in standard readings and the distinctive connection Rawls makes between legitimacy and the good. Jeremy Waldron scrutinizes the relation between public reasons and the reasons individuals bring to their own evaluation of laws and institutions to assess critically the use of public reasons in public debates within a modern pluralistic society. Thom Brooks considers the idea of an overlapping consensus and the criticisms that find it either unnecessary or too fragile to secure political stability over time. He rejects these criticisms and argues for incorporating the capabilities approach in a revision of political liberalism that might better secure political stability. Frank I. Michelman examines the relation between theory and practice through the “political” case for the priority of liberty and how “Rawls, J.” might address related constitutional issues from this perspective. This has important implications for how we understand Rawls’s justification for the priority of liberty. Together, these essays break new ground in our understanding of capabilities, constitutionalism, constructivism, political legitimacy, public reasoning, and political liberalism more generally, testifying to the lasting importance of Rawls’s Political Liberalism in contemporary debates about political justice.

ABBREVIATIONS

CP JF LP PL IPRR TJ

John Rawls, Collected Papers, ed. Samuel Freeman (Cambridge, Mass.: Harvard University Press, 1999). John Rawls, Justice as Fairness: A Restatement, ed. Erin Kelly (Cambridge, Mass.: Harvard University Press, 2001). John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999). John Rawls, Political Liberalism, pbk. ed. (New York: Columbia University Press, 1996). Originally published in 1993. John Rawls, “The Idea of Public Reason Revisited.” Appears in LP 129–180 and CP 573–616. John Rawls, A Theory of Justice, rev. ed. (Cambridge, Mass.: Harvard University Press, 1999). Originally published in 1971.

RAWLS’S POLITICAL LIBERALISM

INTRODUCTION Martha C. Nussbaum

It is extremely hard to introduce a book that is by now a classic and that is rightly regarded as one of the most important works of political philosophy of the twentieth century. An introduction ought to acquaint readers with the main ideas of the work, but Rawls does this with such clarity in his own introduction to the 1996 paperback edition, and in the text itself, that this part of the writer’s task can be executed relatively briefly. Since, moreover, the book is by now the subject of a wide and deep philosophical literature, much of it excellent in quality, it would be foolhardy to attempt to say something about each of the major issues of the work or to sort through debates that can easily be located elsewhere. I have therefore decided to focus on a small number of issues where there is at least some chance that a fresh approach may yield some new understanding of the text: the relationship of Political Liberalism to the history of philosophical debate about pluralism and toleration, Rawls’s distinction between “reasonable” and “unreasonable” comprehensive doctrines, the psychological underpinnings of political liberalism, and the possibility that political liberalism might be extended beyond the small group of modern Western societies that Rawls’s historical remarks suggest as its primary focus. At the same time, I do include a sketch of the main ideas of the work in order

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to give my own view of how they are related, and I offer an account of the relationship between Political Liberalism and A Theory of Justice, an issue that has occasioned, I believe, much misunderstanding. I also include a discussion of the much-debated issue of civility and public reason, which could hardly be avoided, given its prominence in the book’s reception. This introduction should therefore be read not as a comprehensive account of the work but as one person’s attempt to grapple, incompletely and imperfectly, with a book that is as great as any philosophy has seen on this topic of great human urgency.

I. RELIGION AND LIBERAL DEMOCRACY In all modern democracies we find “a diversity of opposing and irreconcilable religious, philosophical, and moral doctrines” (PL 3–4). Even though at some point in history people may have believed that these differences would disappear over time, as the true religion gradually won out over its rivals, that has not happened. Differences about religion and the ultimate meaning of life are robust, and it is implausible to think that they are the result of errors of the sort that could be dispelled by rational argument. Instead, wherever we find the freedoms of speech and of religious belief and exercise, we also find religious (and secular) diversity. It would seem, then, that the pluralism we see is something reasonable—in other words, that reasonable people, using their faculties as well as they can under conditions of freedom, come out in different places with regard to these matters. At one time it might have been thought that the solution to this problem was the one proposed in the Peace of Westphalia in 1648: cuius regio, eius religio. Let the majority religion in each region set up shop and declare itself the religion of that state. By now, however, there is widespread agreement that this is a bad solution to the problem of pluralism, for it involves the repression or subordination of minorities in each region. Every modern society contains internally the same groups that also cause disagreements across national boundary lines: Christians, Jews, Muslims, Hindus, Buddhists, Taoists, Confucianists, and others, along with agnostics and atheists of various types (humanists, Utilitarians, secular Kantians, and so forth). It seems best to try to establish a society that respects the reasonable plurality of religious and secular conceptions of life, paying more than lip service to the value of respect for people and their different ways of organizing their lives.

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All modern democracies attempt to solve the problem of respect for difference, but tensions in every such nation show us how difficult the problem is to solve. In the United States, despite a long constitutional tradition of both religious liberty and equal respect for diverse views, Christian language and sentiments are often casually introduced in public policy statements in ways that suggest the unequal citizenship of nonChristians. In France, the state has made intolerance official state policy by banning the wearing of conspicuous religious articles of dress in public schools. Although this law purports to be evenhanded, it in fact discriminates against Muslims and Jews since Christians do not regard the wearing of large crosses as a religious obligation whereas the Muslim headscarf and (for some Jews) the yarmulke are regarded as obligatory. In India, the particular subject of much of my current writing, a democracy that once prided itself on respect for pluralism and indeed on a real love of religious and ethnic diversity has now increasingly become a Hindu state. Textbooks used by young children express a Hindu-fundamentalist conception of the nation and its history. The Muslim minority’s right to the equal protection of the laws is no longer secure. The highest levels of state and even national government condone gross violations of Muslims’ civil rights. Rawls’s Political Liberalism asks an urgent question: Can liberal constitutional democracy, built on values of mutual respect and reciprocity, be stable—not just as a grudging modus vivendi but out of robust ethical commitment—in a world of religious and secular pluralism? Or, to use his words, “[H]ow is it possible for there to exist over time a just and stable society of free and equal citizens who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?” (PL 4). This question about stability, only glancingly addressed in A Theory of Justice, in which Rawls proposes basic political principles for a just society, becomes the central question of Political Liberalism. Rawls puts the question in this way—“how is it possible”—not because he is convinced that such a thing is possible. Indeed, the introduction he added to the paperback edition of Political Liberalism in 1996 expresses real anguish on that score. The events of the twentieth century raise, he says, real doubts about the fate of justice in this world. But if the question cannot be answered in the affirmative, and people are largely amoral and self-centered, then “one might ask with Kant whether it is worthwhile for human beings to live on the earth” (lxii). We must therefore, he says, begin “with the assumption that a reasonably just political society is possible” (lxii) and with the related assumption that human beings have enough of

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a moral nature that they can be moved by considerations of fairness and respect. In that way, although Rawls certainly believes that history offers at least some basis for hope, the entirety of Political Liberalism is built on what Kant called a set of “practical postulates,” hopeful views for which reason can offer no sufficient justification and that are necessary to sustain our practical involvement with humanity. In our world, as the problems described by Rawls become ever more troubling and violent, we would do well to agree with Rawls in adopting those postulates rather than their contradictories, if we want to continue engaging with the world in a productive way. But if we do follow Rawls here, then it is useful to see an abstract model of what a society that might possibly fulfill his hope would look like. Abstract models of an ideal can be extremely valuable as targets on which to fix our attention as we try to make the world that way rather than its current way or some worse way. Rawls knows that his book will strike many readers as “abstract and unworldly” (lxii). But he then says: “I do not apologize for that” (lxii). He was right not to apologize since he has produced a work that, more than any other modern work of political philosophy, carries forward one’s hope for humanity in an era of religious and ideological turmoil.

II. THE MAIN IDEAS At the heart of Rawls’s argument are two closely related ideas: the idea of respect (or equal respect) and the idea of “fair terms of cooperation.” As Charles Larmore has observed in an important essay, these ideas, though nowhere subjected to sustained analysis in their own right, “shape [his] thought at the deepest level.” Any attempt to make sense of his conception must “trace their ramifications” and grasp “the overall conception they define.” One might add to these two the closely related notion of human dignity, which Rawls expresses in A Theory of Justice when he says that “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override” (3). (Rawls does not use the term “dignity,” but I believe that it captures well the notion of the inviolability of the person that shapes his arguments throughout. And it is a concept familiar from the constitutional traditions of most modern liberal democracies.) For Rawls as for Kant, dignity is the correlate of respect: the reason respect is so central is that people are ends, have a dignity, have something about them that makes it wrong to violate them for the sake of

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overall well-being or to use them as mere means. Respect is an attitude that recognizes that dignity and the fact that it is equal. Although it is easy to associate these ideas with Kant’s moral philosophy, they are ideas that are widely and deeply shared across ethical and religious traditions. (They lie, for example, at the heart of the modern human rights movement.) Some citizens will think of the idea of the soul to elaborate these ideas further; some will deny that souls exist but will agree with the religious believer that a human being has a dignity that deserves respect. Even Utilitarians, one might conjecture, are motivated at a deep level by such ideas (for example, in Bentham’s maxim “each to count for one, and none for more than one”)—despite the fact that some features of Utilitarianism (especially its willingness to tolerate extremely miserable conditions for a small number of people in the pursuit of maximal overall social welfare) suggest that it does not do full justice to that core idea. I have said that the central problem of Political Liberalism, as contrasted with A Theory of Justice, is that of stability. How, then, does the notion of respect bear on the question of stability? Rawls believes that a society will not remain stable over time—or at least not “for the right reasons” (i.e., because of full and free endorsement rather than the oppressive use of force)—if it treats individuals or groups with deficient respect. Showing people that the terms of cooperation we propose are fair to all of them is necessary for stability-for-the-right-reasons, and, if the terms of cooperation are elaborated successfully, that may turn out to be sufficient for stability as well. Stability is, then, a moral notion: it involves not merely the persistence of a set of political arrangements but the persistence of a respect embodied both in institutions and in the attitudes of citizens who support them. Because we respect one another, we want a society in which we can live together on terms of cooperation that are fair to all and that can be publicly seen to be fair to all. Both in Political Liberalism and in A Theory of Justice, the Original Position, and the political principles that are arrived at using that device of representation, model this idea of fairness. The fact that choices of principles are made in ignorance of one’s particular attributes and place in society is a way of modeling the idea that fairness requires impartiality, a ban on special pleading. Terms of cooperation are fair only if they are suitably impartial, treating all as equals. Impartiality is not sufficient for respect: a political conception might treat citizens as equals while still treating them badly. That is why the

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notion of dignity or inviolability is needed to complement the ideas of fairness and respect. The dignity of persons means that they are entitled to certain things from the world, and it is unfair that they should be deprived of those things. Ultimately, Rawls argues in A Theory of Justice, a just society will give people an extensive menu of liberties, on terms of equality, and will arrange economic matters so that inequalities are allowed only when they raise the level of the least well off. Those two principles of justice are taken over unchanged from A Theory of Justice to Political Liberalism, but Rawls now casts them in a new light. Focusing on the issue of religious and secular pluralism, he makes it clear that all the ideas of the conception, including the ideas of respect and fairness, are being developed in a political context, as parts of a “freestanding” political conception that has, to be sure, a profound ethical content but that does not depend for either its content or its justification on metaphysical, epistemological, or religious doctrines that cannot be presumed to be shared among citizens. For in modern societies, under conditions of freedom, people clearly endorse incompatible “comprehensive doctrines,” religious and secular, as to the ultimate meaning and purpose of human life. The fact that in conditions of freedom reasonable people continue to disagree means that the pluralism of doctrines that we observe is not just the result of error or willfulness. For practical purposes we can regard this as a fact about the limits of reason, or what Rawls calls the “burdens of judgment” (PL 54–58). And this fact entails that the pluralism of comprehensive doctrines is itself reasonable. (This important idea in Rawls’s work was developed earlier by Charles Larmore in Patterns of Moral Complexity and The Morals of Modernity. Rawls is explicit in attributing the idea to Larmore, although many readers of Rawls have not acknowledged Larmore’s contribution.) Not all of people’s comprehensive doctrines are reasonable in the ethical sense, incorporating a commitment to fairness and reciprocity; some may refuse respect to others, some may deny one or more basic liberties (PL 60n14), some may even be “mad.” But of many of them, at least, we can say that they are reasonable doctrines, doctrines that reasonable (respectful) citizens could and do hold. But if the plurality of religious and other doctrines is reasonable, then respect and fairness require that we not build a political conception on any one of them. Politics has to prescind from divisive metaphysical or religious claims, if respect is to be preserved. And that shows us why the political doctrine must be both partial, not covering all of human life, and freestanding, justifying itself not through divisive metaphysical

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or religious ideas but through ideas implicit in the public political culture. In this way, the core value of respect leads directly to the hallmark of Political Liberalism, as distinct from A Theory of Justice: the claim that the political doctrine is “political, not metaphysical.” Respect for persons requires respecting the many diverse ways they choose to organize their lives and the many beliefs they hold. But that means that the political conception must limit itself to what citizens of many different sorts can share wholeheartedly. Otherwise, whatever appearances (and intentions) may be, it does not fully respect them. The political conception, we said, is partial, not comprehensive. Rawls describes it as a “module” (PL 12–13, 145) that can be attached by citizens to their different comprehensive doctrines and claims that it will thus form just one part of each citizen’s more global view of what is most important. Politics, however, as Rawls conceives it, deals with matters of profound importance for the whole of a human life: the extent and nature of personal liberty, the availability of economic benefits and opportunities, the social bases of self-respect, in general with the prerequisites of living a flourishing life in one’s own way. This being the case, the political conception needs to use some idea of the person, in terms of which to make sense of the point and purpose of the goods that politics will be distributing, and some view of these goods. Rawls at this point invokes the idea of a “political conception of the person,” according to which people are characterized by two “moral powers,” a capacity for a sense of justice and a capacity for a conception of the good (PL 19). Each person also has some determinate conception of the good. Political planning gets traction and direction from this idea of the person, for, we think, what are persons going to need if that is what they are like? Nonetheless, it is important to remember that the conception of the person is not a metaphysical theory of human nature; it is a political conception that in theory can be endorsed by people whose views of human nature, the soul, etc. vary greatly. The idea of “primary goods,” the goods to be distributed by the political conception, was introduced in A Theory of Justice as an account of all-purpose means to whatever ends citizens might have. Rawls now subtly modifies his conception, stating that the primary goods (liberties and opportunities, income and wealth, the social conditions of self-respect) are to be understood in connection with the political conception of the person, as an account of things that it would be reasonable for persons so conceived to want. Thus, he no longer makes the controversial and possibly false claim that all citizens would (for example) want more money

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rather than less, regardless of their conception of value and plan of life. He claims only that, from the point of view of the political conception, it is reasonable to treat people as wanting these things, if we think of them as having a conception of the good that they want to execute. Given that the parties in the Original Position are ignorant of their determinate conception of the good, they will proceed as if more of these goods is in general better than less, provided that the distribution meets the test of fairness. The entire exercise of selecting principles of justice is envisaged as an attempt to describe the “basic structure” of society, meaning “the way in which the major social institutions fit together into one system, and how they assign fundamental rights and duties and shape the division of advantages that arises through social cooperation” (PL 258). Rawls treats this characterization as equivalent to the system of institutions that influence people’s lives “pervasively and from the start” of a human life. Although A Theory of Justice implicitly focused on the basic structure so defined, Political Liberalism gives this focus new explicitness and importance. The focus on the basic structure suggests a division between political fundamentals and other matters that will be governed, perhaps, by different principles; thus, Rawls insists that the economic principles of the basic structure do not apply to voluntary organizations within society. This division suggests, in turn, a further distinction: between political deliberation that touches on these fundamental matters and other political debates that go on in what Rawls calls “the background culture.” This distinction will be crucial to an understanding of his doctrine of civility (see section VIII). The distinction between the basic structure and other aspects of social life is connected, once again, to the underlying ideas of respect and fairness. If we propose a comprehensive set of principles regulating all aspects of human life, as Utilitarianism does (PL 260–262), we behave illiberally and, to that extent, disrespectfully, for we tell people how to arrange all their choices and all the nonpolitical aspects of their lives, even when they hold comprehensive conceptions of the good that give them different organizing principles (for example, principles based on religious authority or on the maximization of utility). Thus, the focus on the basic structure is part of the abstemiousness of the theory, which, in turn, is dictated by its respectfulness. Although the resulting theory is in that sense liberal, protecting crucial spheres of liberty, it is by no means libertarian, advocating a minimal state. Rawls, indeed, argues that libertarianism has no special role for the basic structure and its responsibilities (PL 262ff.)

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and, to that extent, gives bad guidance. Instead, Rawls’s political conception provides firm protection both for a set of major liberties and for basic economic and other opportunities. When considering the abstemiousness of the theory, however, it is important to bear in mind that in Rawls’s view the family is a part of the basic structure (PL 258), on the grounds (entirely plausible) that it is part of the system of institutions that does determine people’s life chances pervasively and from the start of a human life. So Rawls’s emphasis on the basic structure is not a way of importing into the theory the classical but rightly criticized idea of a distinction between “public” and “private.” For example, Rawls’s theory clearly entails that violence within the family is just as much a public and political problem as violence in the “public square.” Whether Rawls carries out this insight in a fully consistent way may be doubted; I cannot pursue the issue further here since Rawls develops his insights on the family in his important article “The Idea of Public Reason Revisited,” which he intended to incorporate into Political Liberalism but had not yet done at the time of his death (see section V). In Political Liberalism, however, it is very clear that the family is to be treated as a political institution that forms part of the basic structure. The most important further new concept that Rawls develops in Political Liberalism is that of overlapping consensus. This idea can best be understood by thinking, once again, of his image of the “module.” Many different reasonable comprehensive doctrines will approve of the political conception, including it as a module inside their own overall view. Thus the views of citizens, while differing in many respects, will overlap in the key areas that involve the basic principles of justice. (Rawls later said that the overlap pertained not to one determinate conception of justice but, rather, to a family of such conceptions: see section V.) Overlapping consensus is, in effect, the ultimate answer to the question of stability. Because citizens will see that the political conception respects them, both by respecting their liberties and opportunities and by respecting their comprehensive doctrines, they will give it more than grudging allegiance. What might at one time in history have been a mere grudging, and therefore unstable, modus vivendi becomes whole-hearted endorsement of the conception. Citizens will endorse the political conception for themselves, as something compatible with (and indeed a part of ) whatever comprehensive doctrine they hold. At the same time they will endorse the conception as the basis for a mutually respectful and reciprocal life with one another.

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Recognition of the “burdens of judgment” plays a key role in this acceptance, for without this recognition citizens might hold out for a political conception that builds in more of their own personal political doctrine, believing that their fellow citizens will soon see the error of their ways. As it is, having a sense of justice and seeking fair terms of cooperation, and realizing that it is highly unlikely that a homogeneity of comprehensive doctrines will emerge under conditions of freedom, they want a conception by which they can live with others fairly, in ways that are respectful of the doctrines of others as well as their own.

III. HISTORICAL ANTECEDENTS: HOBBES, LOCKE, ROUSSEAU, KANT Rawls had the greatest respect for the history of philosophy. His teaching typically focused on historical texts rather than current debates. He believed that the best way of developing one’s philosophical ideas was to engage systematically with the great texts of the tradition. His own ideas about respect, toleration, and political liberalism were in many respects shaped by a long tradition of thought on these topics; because he rarely mentions these texts, it may be useful to give readers a sense of that larger historical context. All subsequent thinkers in the tradition have to grapple with Thomas Hobbes, and Rawls’s meditation on political stability in Political Liberalism may be read as an extended rejoinder to Leviathan (1651). Hobbes holds that a tolerant pluralistic state is bound to be dangerously unstable. Stability can be ensured only by vesting in the sovereign (whether an individual or a group) all power to regulate belief as well as conduct. The civil sovereign, argues Hobbes, must be the head of the church as well as the state and must be seen as commissioned by God to run both. It is from the sovereign that all other ministers derive their right of teaching and preaching; thus they exercise their functions iure civili, on account of civil authority, and only the sovereign exercises his function iure divino, by divine authority. Any subject who deviates from the opinions taught by the sovereign is thus violating his religious faith because he is defying God’s regent. Nor can an opinion publicly authorized count as heresy; heresy is defined by Hobbes as an obstinate private opinion that goes against the public view promulgated by the sovereign. In this way he can deny that so-called martyrs are really admirable, for they are simply

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going against divine authority. There is no conflict between obeying God and obeying the state: obedience is always just and in accord with divine authority. Indeed, there is no tension between two realms: “The Laws of God therefore are none but the Laws of Nature, whereof the principall is, that we should not violate our Faith, that is, a commandement to obey our Civill Soveraigns, which wee constituted over us, by mutuall pact one with another.” At the core of Hobbes’s argument lies a concern for stability, and his overall position is that vesting authority thus in the sovereign is the only way for human beings to end the miserable state of war and poverty that characterized life in the hypothetical “state of nature.” Stability for Hobbes is not, however, a moral notion as it is for Rawls, since it is Hobbes’s view that stability in the practical sense always requires the oppressive use of force, or at least its possibility. It is the Hobbesian challenge, one might say, that made Political Liberalism essential as a continuation to A Theory of Justice, for the possibility of stability for the right reasons, without the oppressive use of force, in a nation in which people share different views of ultimate religious authority, is the possibility that Hobbes so vigorously denied. (His denial of this possibility is closely connected to his denial that people could ever be consistently reasonable in the ethical sense, giving precedence to fairness and reciprocity over considerations of personal fear and power.) John Locke’s A Letter Concerning Toleration (1689) is among the most famous rejoinders to Hobbes and a text that has influenced all subsequent thinking about its topic. The framers of the U.S. Constitution, deeply influenced by Locke’s political philosophy in general, were particularly influenced by his ideas on religion and the state, although their development of these ideas also reflected the colonies’ own experience with religious pluralism. Writing in an England deeply torn by religious strife, as Catholics, Anglicans, and Puritans all jostled for supremacy and as all sought the repression of other religions, large and small, Locke insists that in matters of religious belief and religious conduct (so long as it does not violate the rights of others) the state must strive to protect “absolute liberty, just and true liberty, equal and impartial liberty.” (For Locke, this protection extended to all religions, explicitly including Judaism and Islam, but did not extend to atheism, which Locke saw as a threat to the sanctity of oaths.) Not only must the state refuse the use of coercion to compel religious homogeneity; it must strenuously protect all its citizens from

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coercion on the part of others. Moreover, no person is to be “prejudiced in his civil enjoyments” because of religion. Magistrates must go beyond nonpersecution to zealous protection of all citizens in their civil rights, so that “the goods and health of subjects be not injured by the fraud or violence of others.” Locke assigns to religion the sphere of belief, particularly with reference to salvation; to the state he assigns a nonoverlapping jurisdiction, that over civil entitlements and property. The state must leave religion strictly alone, except insofar as it ventures into areas that the state rightly regulates, such as property. For both citizens and state actors, the norm of toleration requires not only the grudging preservation of rights but also a spirit of “charity, bounty, and liberality.” Church officials ought to advise their members of “the duties of peace and good-will towards all men; as well towards the erroneous as the orthodox.” They should “industriously exhort” their members and especially civic magistrates to “charity, meekness, and toleration.” All this has much in common both with what Rawls will recommend and with the foundations of the modern American constitutional tradition. Locke advances several different arguments for his norm. Some of these arguments rely on Christian texts and doctrines. Some rely on a skeptical attitude toward religious beliefs, which Locke regarded as peculiarly difficult to establish by reason. One influential strand of argument relies on the Protestant idea of “free faith”: genuine religious belief cannot be coerced. Such arguments will seem problematic to someone who has followed Rawls’s line of thought, since none of them can be endorsed by citizens who do not hold the religious, epistemological, or metaphysical beliefs on which they rely. (Skepticism denies the possibility of knowledge and thus cannot be endorsed by many believers in religious truth.) Rawls’s attempt to present his political conception as a “free-standing” module that can be accepted by people who hold many different comprehensive doctrines involves an implicit critique of these aspects of Locke’s argument. He remarks that genuine respect for pluralism requires us to “appl[y] the principle of toleration to philosophy itself ” (PL 10). There is another strand in Locke, however, that is more Rawlsian. Locke insists that all citizens have rights, that is, rightful claims over liberty, property, and other prerequisites of well-being. Moreover, these rights are equal. It is simply wrong for these equal rights to be undermined on grounds of religious difference. Summarizing his argument, Locke emphasizes the centrality of this strand in his argument, stating, “The sum of all we drive at is, that every man enjoy the same rights that are granted to others.”

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This argument is based on Locke’s general political theory and, in particular, on his idea of the social contract and its relation to rights, a set of arguments that are one important source of Rawls’s thinking about the social contract in A Theory of Justice. I shall not pursue those connections further here. However we understand the origin of Locke’s doctrine of rights, it is a powerful idea for modern pluralistic democracies, one that most of them already accept, however much they differ concerning the metaphysical grounding of rights claims and the precise nature of the rights in question. It seems likely that the key idea in this Lockean argument is the very idea of respect for persons that is so central to Rawls’s argument. To say that persons have rights and should not be interfered with is a way of saying that persons deserve respect from one another. With regard to the fundamentals of well-being they are all equally placed, equally entitled, and their equal entitlements must not be interfered with, either by the state or, through the inaction of the state, by one another. This is the strand of argument that Rawls endorses and develops, albeit with reference to Kant rather than Locke. Unlike Locke, he extends equality of respect to atheists as well as religious believers, treating all reasonable comprehensive conceptions of the good life similarly. Locke recognizes that people are not always generous and peaceable. Indeed, his insistence on the duty of churches to exhort their members to toleration, generosity, and peace acknowledges the presence of a problem: people are inclined to go against the Lockean ideal. Locke’s political surroundings did much to illustrate such violations. But nothing is said about how a Lockean state can grapple with this problem, beyond exhorting people to behave well. The problem of political stability is thus left hanging. Although Rawls writes at a time when the Lockean norm has been largely accepted and is no longer a radical minority position, he is surely right to think that the question of stability needs more attention than Locke gives it. Indeed, another great thinker in the tradition holds that the problem of stability cannot be solved in Locke’s way, by laws protecting civil liberties combined with public exhortations to good behavior. In the final chapter of The Social Contract (1762), Jean-Jacques Rousseau argues that complete toleration in spiritual matters is of great importance for a democratic society but that it needs to be undergirded by the promulgation of a “civil religion” consisting of “sentiments of sociability, without which it is impossible to be a good citizen or a faithful subject.” This religion, a kind of moralized Deism fortified with patriotic beliefs and sentiments, will hold the state together and create moral unanimity among citizens.

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Its dogmas include the existence of a powerful beneficent deity and a life after death, the happiness of the just, the punishment of the wicked, the sanctity of the social contract and the laws, and the unacceptability of theological intolerance. Around all of these dogmas the sovereign will create ceremonies and rituals, engendering strong bonds of sentiment connected to morality and patriotic duty. The civil religion functions as the common moral core of all the acceptable forms of religion. People may then add to this core various metaphysical and spiritual beliefs. “Each man can have in addition such opinions as he pleases, without it being any of the sovereign’s business to know what they are.” But all must adhere to the core, both with respect to conduct and with respect to belief. Rousseau permits the sovereign to enforce the civil religion by coercive means, including banishment and even capital punishment. State coercion applies not only to conduct harmful to others (as in Locke) but also to nonharmful conduct expressing lack of adherence to the civil religion; it applies, as well, to nonconforming belief and speech. Coercion is likely to be extensive, since Rousseau insists that citizens endorse not only civil or political toleration (the idea that all should be allowed to exercise their religion without public penalty) but also theological toleration (the idea that people can legitimately pursue salvation by different religious paths). Thus state coercion extends to a great deal in the way of religious and metaphysical opinion, since Rousseau believes that “it is impossible to live in peace with those one believes to be damned.” If we think about the relationship of Rousseau’s ideas to the actual doctrines of the major religions in his own time, we can see quickly that in Rousseau’s state Roman Catholics will not be tolerated, nor will many if not most forms of Protestantism. Kant is in many ways Rawls’s major historical inspiration in Political Liberalism, but Kant’s writings on religion, which interested Rawls deeply in his teaching, do not figure explicitly in that text. Nonetheless, Kant’s response to Rousseau is of interest to us, as we attempt to trace the tradition in which Rawls sets himself. In Religion Within the Boundaries of Mere Reason (1793–1794), Kant accepts a great deal of Rousseau’s psychology, especially the idea that people all have an inherent tendency to behave badly to one another and, in particular, to set up hierarchies ranking themselves above others. That tendency is what he calls “radical evil.” On the other hand, he rejects Rousseau’s solution to this problem, the civil religion, as incompatible with a deep norm of human freedom. To impose on people a common set of doctrines and to deny them the free choice of

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religious belief and practice seems to Kant an intolerable violation of their humanity. In most essentials, Kant’s state is like Locke’s: people are to be zealously protected in their civil liberties, including, importantly, liberties of belief and speech; for the rest, Kant relies on informal ethical conversations in what Rawls would call the “background culture” to supply incentives to people to leave bad practices and bad organizations and to join a church of the right sort, one that will encourage their moral development and restrain bad tendencies. Kant thus rejects Rousseau’s solution while accepting his diagnosis. His proposals leave us in some doubt as to whether the problem of political stability has been solved. (I shall return to Kant in section VIII.) Rawls implicitly grapples with Rousseau’s powerful reply to Locke and Kant’s cautious reassertion of the Lockean state. Recognizing more fully than does Kant the force of Rousseau’s challenge on the issue of political stability, he attempts to show that a stably tolerant political conception does not need to rely on, far less to enforce, any uniformity of belief or practice in metaphysical, epistemological, or theological matters. Instead, it may, as Locke suggests, adopt a purely political doctrine of toleration. But Rawls improves on Locke’s argument by placing respect for persons explicitly and squarely at the core of the political conception and by giving the state, in consequence, a jurisdiction that covers important areas of the moral relations between citizens as well as their civil and political liberties and their property rights. I believe that Locke was moving in the direction of some such idea, but his insistence on a very strong jurisdictional separation between church and state made it difficult for him to express clearly the moral foundations of his political conception (at least in the Letter). Rawls argues powerfully that the major religions, insofar as they are reasonable (committed to fairness and reciprocity toward citizens who hold different beliefs), all accept a moral doctrine of respect that can be cashed out in different ways theologically and epistemologically. Thus they can accept the moral underpinnings of the political conception while adding to that “module” their own metaphysical interpretations of the principle of respect, whatever those may be. Rawls agrees with Locke that people are to be punished only for violations of others’ rights and that their freedom of speech and belief is to be zealously protected. Nonetheless, he adds some important features to Locke’s conception, which bear on the issue of stability. In particular, by distinguishing between “reasonable” and “unreasonable” comprehensive doctrines and by suggesting that a nation’s constitution will rightly

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entrench the norms of respect in such a way that many proposals from the latter group (for example, proposals to enslave others or to remove their civil rights) cannot come up for straightforward majority vote, he moves decisively beyond Locke in the direction of modern liberal constitutionalism. He insists that public education and the formation of “principledependent” sentiments will add further force and stability to these constitutional essentials (see section VIII). And he develops Locke’s idea of civility into a definite moral duty for citizens, when they discuss constitutional fundamentals and matters of basic justice (see section VII). Rawls is writing in a context in which norms of toleration and mutual respect are less controversial than they were in Locke’s time and in which religious free exercise is typically given strong constitutional protection, as are related norms of free speech and freedom of association. Most modern constitutional democracies entrench all these rights beyond the reach of a simple majority vote. Nonetheless, the fact that such norms are widely respected does not mean that support for them could not become lax or that a new political situation could not call them into question. Rawls’s introduction to the paperback edition of Political Liberalism ends on a somber note, as he discusses the collapse of liberal democracy in the Weimar Republic. He did not think that our time was analogous to that time, which culminated in “the manic evil of the Holocaust” (PL lxii). But he did think that the events of the twentieth century had raised “in an acute way” (PL lxii) the question whether a reasonably fair political society can remain stable. The tradition I have described focuses on religious pluralism, and some of its members (for example, Kant and the Utilitarians) see nothing wrong with building the state on a comprehensive ethical doctrine. Rawls differs strikingly at this point, treating all comprehensive doctrines, religious and secular, with equal respect and equal abstemiousness. The political conception must not be built on or incorporate divisive features of any comprehensive doctrine.

IV. FROM A THEORY OF JUSTICE TO POLITICAL LIBERALISM Much has been written about alleged differences between A Theory of Justice and Political Liberalism, much of it, in my view, misleading. Rawls himself at times gives the misleading impression that the new work represents a change of course and seriously revises the views of A Theory of

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Justice, although more often he insists, apparently correctly, that all the arguments of the earlier book are preserved, including the arguments about economic redistribution. The crucial thing to understand is that Political Liberalism addresses a different question from the question that is the focus of A Theory of Justice, which attempts to justify a set of basic political principles as those that best express a fundamental commitment to the inviolability and equality of persons. It does so, famously, by describing a hypothetical situation of choice in which imaginary agents design the basic institutions of society without knowing their own place in that society. Political Liberalism poses a further question, and it is said to be a question both about Rawls’s political conception and also about a broader family of reasonable liberal political conceptions: namely, can such a family of liberal political conceptions be stable over time under conditions of religious and ethical pluralism such as those that obtain in the modern world, without the oppressive use of state power? Can such a family of conceptions become the object of an “overlapping consensus,” winning support not just as a grudging modus vivendi but, instead, as a “module” that reasonable citizens endorse as a part of their own comprehensive doctrines? Although A Theory of Justice did address the question of stability in some ways, in the fascinating section of the work dealing with moral development, Rawls came to feel that this section of the work was both insufficient, leaving a great deal more to be said about stability with particular reference to religion (that section was basically silent about religion), and, in addition, misleading, suggesting that society would remain stable by teaching young citizens a comprehensive liberal view of the good. I do not really see that liberalism was treated as a comprehensive doctrine in that section; Rawls’s self-criticism seems excessive. But we can at least agree that the section on moral development did not rule out the idea of teaching all citizens a comprehensive ethical doctrine of liberalism. And, in his increasing concern with authoritarian religion in particular, Rawls came to feel this to be a flaw in A Theory of Justice, one that required another work devoted to the stability problem to address it. Such a work would not need to change the principles of justice proposed in A Theory of Justice or the basic framework of argument for them since Rawls believed that those principles could be justified to citizens holding a wide range of religious and secular comprehensive doctrines. But it would need to clarify, as A Theory of Justice did not, the fact that the conception so justified is a political conception, not a metaphysical or a

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comprehensive ethical conception. Whether A Theory of Justice actually asserted that its doctrine was comprehensive may certainly be doubted; what is important is that the text was vague on a matter that had come to Rawls to seem of absolutely central importance. So it became necessary to emphasize the distinction between the political and the metaphysical throughout the text, insisting that the Original Position is itself a device of representation (a thought experiment) in the process of developing a political conception and that it embodies neither a theory of human nature (a metaphysical statement about the essence of human beings) nor a comprehensive ethical idea. The new commitment to abstemiousness about matters of metaphysics and epistemology also required Rawls to emphasize repeatedly the fact that the political principles themselves are not supposed to be “true” but, rather, “reasonable.” (Some skeptics might be unwilling to grant that they were true, and some religious believers might also demur, on the grounds that all truth is comprehended in revealed religion.) Some readers of Political Liberalism have felt that Rawls blunts the radical force of A Theory of Justice’s economic arguments. It is surely true that Political Liberalism says little about the economic arguments, but that is because, as Rawls repeatedly insists, they are unchanged. Another reason for not emphasizing the specifics of the principles of justice, a reason that Rawls increasingly emphasized over time (see section V), is that his idea of overlapping consensus in Political Liberalism pertains not to his own conception of justice in particular but, instead, to a whole family of reasonable liberal conceptions, of which his theory is only one. Indeed, if we can speak of development in Rawls’s economic doctrines, development seems to proceed in just the opposite direction, the later work being significantly more radical than the earlier. In the earlier work, Rawls tends to separate questions of liberty from economic questions, giving the former a lexical priority over the latter. In Political Liberalism, Rawls recognizes that liberty may have economic prerequisites. He states that “the first principle covering the equal basic rights and liberties may easily be preceded by a lexically prior principle requiring that citizens’ basic needs be met, at least insofar as their being met is necessary for citizens to understand and to be able fruitfully to exercise those rights and liberties” (PL 7). And in the important section on campaign finance (PL 359ff.), Rawls now acknowledges frankly that economic inequality is a threat to the equal worth of liberty. This is not exactly incompatible with A Theory of Justice, but the former book did suggest, at least, that we could

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solve problems of liberty and its distribution before facing economic questions. Now Rawls admits something that seems true and crucially important: liberty has economic aspects, and there is no coherent way of separating questions of liberty from the overall economic order of society. Some readers feel disappointment of a different sort. They feel that Rawls is simply wrong to care so much about the problem of authoritarian religion, and they wish that he had been willing to be much more comprehensive in his liberalism. For example, they are distressed by the fact that it is no longer possible to say that the doctrine protecting people’s basic equality and liberty is true: why should we have to say instead that it is “reasonable”? Aren’t the equality of the races and the equality of men and women facts? Why should the political conception pussyfoot around in matters of such great importance, insisting only that the races, or men and women, are equal for political purposes? Again, why should the conception be willing to defend autonomy only as a political doctrine and for political purposes, rather than as a moral account of what makes lives go well? The answer to these questions is given in the text as a whole, although it will not satisfy all liberals. Rawls wants liberal society to show respect for each and every person. He holds, plausibly, that respect for persons requires respect for their comprehensive doctrines, where those are reasonable, in the sense that they are such that reasonable citizens, respecting their fellow citizens as equals, might affirm them. (For ambiguities in the notion of reasonable, see section VI.) To say in a perfectly general way that autonomous lives are better than nonautonomous lives (as thinkers such as John Stuart Mill and Joseph Raz do) is to express deficient respect for citizens who adhere to an authoritarian religion (or to some other authoritarian conception of life, such as a military conception). Similarly, citizens may have many different views about the metaphysical, theological, and eschatological status of women and men while affirming the full equality of men and women as citizens. Political equality is demanding; it includes a commitment to provide for all citizens’ economic well-being and other opportunities on a basis of equality. So it will surely make demands on the family structure and on other matters that religions have traditionally controlled. Not every belief about metaphysical inequality can be squared with political equality (see section VI). Nonetheless, a range of different views about the natures of men and women may turn out to be compatible with political equality, and Rawls sees no reason to venture onto divisive metaphysical terrain.

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Not all liberals will agree. But then the ball seems to be in their court: either they should state forthrightly that the stability of liberal constitutional democracies (by wholehearted affirmation) is of little concern to them, by comparison to the importance of realizing a doctrine that is true, or they should show how their doctrine would solve the problem of stability at least as well as Rawls’s. Moreover, the issue of stability is not just a prudential issue, for it is at bottom an issue of equal respect for persons. So they will have to show how they preserve the value of equal respect while permitting the political conception to express divisive metaphysical, epistemological, and ethical claims.

V. RAWLS’S PLANNED REVISIONS Rawls continued to refine the ideas and arguments of Political Liberalism. In the important article “The Idea of Public Reason Revisited,” first published in the University of Chicago Law Review in 1997 and republished in The Law of Peoples and Rawls’s Collected Papers (both 1999), Rawls further elaborated and also revised the ideas about public reason that he had developed in the book. These revisions are similar to the changes announced in the new preface to Political Liberalism’s paperback edition in 1996, but his development of the key ideas is much more extensive. In a letter he wrote to his editor in 1998, he said, “My thoughts keep changing as time passes and I think that the Chicago article is by far the best statement I have written on ideas of public reason and political liberalism.” He intended to produce a revised edition of the text that would incorporate these new developments. Although manuscripts containing many of these revisions exist, a decision was made not to produce a new edition, in large part because the revisions were incomplete at the time of Rawls’s death. His widow, Mardy, however, wishes readers to be aware of the changes that he planned to make. The largest such change was the incorporation into the text of the new ideas contained in “The Idea of Public Reason Revisited,” including a revised view of the duty of civility (see section VII) and a new emphasis on how religions based on church and textual authority can nonetheless support the political conception of a constitutional democratic regime. Rawls believed, and stated in the 1998 letter, that Catholicism (after Vatican II), Protestantism, Judaism, and Islam could all support such a regime,

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although some forms of fundamentalism perhaps could not. “Thus,” wrote Rawls in that same letter, “public reason and political liberalism have considerable relevance to highly contested questions of our contemporary world.” Many other changes were envisaged. As Rawls writes, “I have changed not only the vocabulary in which [my] ideas are expressed, but the ways of thought which philosophical terminology conveys.” In particular, he had come to feel that the frequent use of the terms “practical reason” and “principles of practical reason” suggested that Kant’s ideas of practical reason were being used. Since that was “a serious mistake,” he planned to delete these expressions and insert other more neutral expressions. Another example is the use of the phrase “political constructivism,” which he proposed to discuss only in lecture III, sections 1–4, and to delete elsewhere. A very important revision concerns the idea of justice as fairness. Political Liberalism, Rawls now says, is not about the stability of that conception, his own political conception, developed in A Theory of Justice. It is, instead, about “a family of liberal ideas of political justice” and a possible overlapping consensus concerning this whole family. “Justice as fairness itself now has a minor role as one such political conception among others.” This idea was already mentioned in the 1996 introduction (PL xlix), but it would now permeate the text. It has considerable importance, showing that citizens in the well-ordered society do not need to agree about all the important matters but may vigorously disagree about some aspects of basic political principles. Civility will now be understood in terms of that family of ideas (see section VII). As readers of “The Idea of Public Reason Revisited” know, it contains a section on feminism and the family, in which Rawls responds to feminist critics, particularly the late Susan Moller Okin. This section is somewhat oddly placed in that book, with which generally it has little to do. Originally, the section on the family was a separate manuscript that circulated widely on its own. The 1998 letter makes it plain that Rawls planned to incorporate that section into Political Liberalism, although he does not say exactly where. He also mentions various changes he intended to make in the section on “The Basic Liberties and Their Priority.” Although in deference to Habermas he says that he feels obligated not to change that reply, he intended to note “certain revisions I would now make. At that time (March, 1995) I was not using several ideas found in my present writing.”

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Many other literary and editorial changes were under way to make the book “clearer and, I hope, easier to read.” Rawls expressed gratitude to his wife, Mardy, for her advice on these revisions.

VI. REASONABLE COMPREHENSIVE DOCTRINES An important feature of Rawls’s analysis in Political Liberalism is his distinction between “reasonable” and “unreasonable” comprehensive doctrines. As we have seen, his account of the “burdens of judgment” emphasizes the fact that people disagree about matters of ultimate value and adhere to different comprehensive doctrines not simply on account of irrationality or sloppy thinking but on account of factors that make the disputes between them cases of “reasonable disagreement.” To say this is to recognize “the many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life” (PL 56). The sources of reasonable disagreement mentioned by Rawls (PL 56–57) include: the complexity and difficulty of the relevant evidence, the fact that the evidence by itself does not tell us how to assign weight to different considerations, the indeterminacy of central concepts in hard cases, the fact that assessment and weighting of evidence is shaped by different life experiences, the existence of normative considerations on both sides of an issue, and the need for any social system to select from the full range of human values that might be realized. People who differ on account of these factors differ reasonably; or, to put it another way, reasonable citizens can and do disagree for such reasons. “This pluralism is not seen as disaster but rather as the natural outcome of the activities of human reason under enduring free institutions. To see reasonable pluralism as a disaster is to see the exercise of reason under the conditions of freedom itself as a disaster” (PL xxvi–xxvii). Many comprehensive doctrines can be reasonable in this sense (PL 129). Rawls recognizes that there are also unreasonable comprehensive doctrines and unreasonable disagreements. Some may be silly and innocuous. But Rawls recognizes that there are doctrines that are “not only irrational but mad and aggressive” (PL 144). Among them are doctrines that “reject one or more democratic freedoms” (PL 64n19). Such doctrines do not form part of the overlapping consensus. Rawls’s highly protective doctrine of free political speech suggests that their speech may be limited only in

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the sort of emergency that amounts to a constitutional crisis. Nonetheless, the constitutional order will have entrenched the major liberties, and thus doctrines that propose the elimination of one or more of these liberties cannot come up as simple legislative proposals. In general, the job of a liberal society must be one “of containing [such doctrines]—like war and disease—so that they do not overturn political justice” (PL 64n19). It is clear enough, then, that the distinction between mere disagreement and reasonable disagreement is central to Rawls. But the reader is left with several difficult questions. The first pertains to Rawls’s way of articulating the distinction. Throughout the book, including the section on “the burdens of judgment,” the term “reasonable” is used in an ethical sense: “reasonable” persons are those who are willing “to propose fair terms of cooperation and to abide by them provided others do”; a second aspect is a willingness to recognize the burdens of judgment and “to accept their consequences for the use of public reason in directing the legitimate course of political power in a constitutional regime” (PL 54). This second aspect is also ethical: the reasonable citizen does not try to enforce her own comprehensive doctrine through law, out of a recognition of the burdens of judgment and a related respect for her fellow citizens. Both aspects of the reasonable appear to be closely connected with the idea of respect, whose centrality in Rawls’s whole enterprise we have already had occasion to observe. At times, Rawls connects the idea of a reasonable comprehensive doctrine very closely to the idea of the reasonable citizen: reasonable comprehensive doctrines are “the doctrines that reasonable citizens affirm” (PL 36). But Rawls later makes it plain that he does not intend this characterization as a definition, or at least not as a complete definition, of reasonable comprehensive doctrines. Having already assumed that “reasonable persons affirm only reasonable comprehensive doctrines,” he then states, “Now we need a definition of such doctrines” (PL 59). His definition includes three features, all of them theoretical rather than ethical. First, a reasonable doctrine is “an exercise of theoretical reason” that “covers the major religious, philosophical, and moral aspects of human life in a more or less consistent and coherent manner. It organizes and characterizes recognized values so that they are compatible with one another and express an intelligible view of the world.” Second, the doctrine is also an “exercise of practical reason” that gives instruction on how to weigh values and what to do when they conflict. Third, such a doctrine, while not necessarily fixed and unchanging, “normally belongs to, or draws upon, a

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tradition of thought and doctrine” and therefore tends to evolve “slowly in the light of what from its point of view, it sees a good and sufficient reasons” (PL 59). Rawls explicitly distinguishes these sources of disagreement from a variety of sources of “unreasonable disagreement” (PL 58). This “definition” may be Rawls’s way of elaborating the second aspect of the “reasonable” in the ethical sense, namely, “the willingness to recognize the burdens of judgment and to accept their consequences for the use of public reason.” Nonetheless, it incorporates some fairly strong theoretical criteria, however vaguely stated, that are not obviously entailed by this second very general idea as originally stated. The theoretical criteria raise some troublesome questions. The problem with Rawls’s formulation is that there would appear to be many doctrines affirmed by reasonable citizens (in the ethical sense) that do not meet these rather exacting theoretical standards. Worldviews based on astrology, New Age religion, and many other pictures of the world that many Americans affirm probably fail to satisfy all three criteria: some may lack coherence and comprehensiveness, some may be impervious to evidence (as many ancient thinkers held concerning astrology), some may be too fanciful or piecemeal to contain what we could call an “intelligible” view of the world. Much, clearly, depends on how we further interpret Rawls’s rather vague criteria. Many Americans hold even weirder doctrines: a large proportion believe that aliens have invaded, and this somehow forms part of their view of life. Rawls might well be willing to call all such antiscientific doctrines unreasonable, given his view that the major conclusions of science form part of public reason (see below). That would already raise difficult questions since citizens who affirm an antiscientific doctrine can still be reasonable in the ethical sense. But if we look closely at some key doctrines of many of the major religions, they too generate problems, which we may fail to notice only because the doctrines look so familiar. The Christian doctrine of the Trinity seems straightforward enough, yet, as numerous Christian philosophers emphasize, it asks the believing Christian to believe a contradiction. Dante, in Paradiso, vividly depicts this doctrine as a way of humbling the arrogant aspirations of the intellect. Using the Aristotelian metaphor of reason as a “bow” straining toward its target, a metaphor Dante would once have affirmed as true and central, he depicts Dante’s bow as broken under the strain of accepting the Trinity, and only then does he have proper Christian humility. The doctrine may be interpreted in ways that soften this problem, but central strands of Christianity, at any rate, emphasize the importance of

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departing from the most fundamental axiom of reason. In other words, it is not just from the point of view of a nonbeliever that a key doctrine of Christianity looks irrational; its irrationality is absolutely key to its theological meaning and purpose. Modern Christians often forget how radical a doctrine this humbling of the intellect is because they are used to the idea of the Trinity and find it easy to pay lip service to it without trying to grasp something that the human mind is not equipped to grasp. If these problems exist in fitting Rawls’s criteria to the scholastic strand in Roman Catholicism, which is the most rationalistic strand of traditional Christianity, they exist all the more when we contemplate Christianity in its Augustinian, Protestant, and evangelical forms. Traditional Judaism, while to some extent more rationalistic than Christianity, similarly contains the demand to accept a mystery that is in principle not graspable by reason. The end of the book of Job, for example, contains a vivid repudiation of the aspirations of Hellenic rationalism, which has given rise to a prominent mystical strand in Judaism, exemplified by Gershom Scholem and the Hasidic rabbis. Moreover, traditional Judaism contains a principle of autonomy that causes it to run afoul of Rawls’s second doctrine: there are no in-advance instructions for hard cases, precisely because each person must figure out what to do for him or herself: the law is not in heaven but on earth (Deut. 30:12–14). Reform Judaism has augmented the scope of that principle, so that autonomy altogether trumps dogma, and we might say that in the end Reform Judaism has no doctrines (perhaps not even theism, although this is disputed), only the core idea of the moral law, which each believer must interpret and apply to the world in his or her own way. For religious doctrine to provide any theoretical structure seems to Reform Jews to violate autonomy. One could multiply examples. What is clear, then, is that Rawls has introduced a massive difficulty by defining reasonable doctrines in terms of these theoretical criteria, a difficulty that pertains not only to doctrines that he might be willing to disparage as unreasonable (although I think he shouldn’t) but also to doctrines that are central to his whole motivation and purpose. Moreover, his definition seems to run afoul of one of the core ideas of the text, the idea of respect for reasonable citizens. So long as people are reasonable in the ethical sense, why should the political conception denigrate them because they believe in astrology, or crystals, or the Trinity? Why not let them and their beliefs alone? It is revealing, and a sign of the depth of the problem, that an interpreter who worked especially closely with Rawls, in a lecture whose aim

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was to describe clearly the key ideas of Political Liberalism, ascribes to Rawls the doctrine that I have just suggested he ought to hold: “A reasonable comprehensive doctrine can be irrational—you can be like Tertullian and say, ‘I believe because it is absurd.’ All a comprehensive doctrine has to do to be reasonable is to endorse a liberal political conception. But outside of that it can hold anything it wants.” Burton Dreben, who gets Rawls right on every other issue, so far as I can see, plainly is at odds with the text on this one. But he is not at odds, I suggest, with the deeper spirit of Rawls’s project and the centrality of the notion of respect in it. Perhaps Rawls really should have used the notion of the reasonable citizen to define reasonable comprehensive doctrines: reasonable doctrines are doctrines that reasonable citizens affirm. The burdens of judgment do enter into the thinking of such citizens when they think about why they should not insist on the truth of their doctrine in the public realm. But that is enough use for them: reasonable citizens should not be in the business of looking over the shoulders of their fellow citizens to ask whether their doctrines contain an acceptably comprehensive and coherent exercise of theoretical reason. Such scrutiny, besides inviting the tu quoque that the New Ager or the friend of astrology might rightly give to a mainstream Christian, is a kind of invidious interference that has no place in respectful political liberalism. Why did Rawls include the theoretical criteria? Like every point in Rawls concerning which one might think him mistaken, this one has deep roots in his thought and good arguments in its favor. Rawls plainly thinks that the kind of respect on which liberal democracy depends requires distinguishing between doctrines that are just silly or in some obvious way irrational and doctrines that are not; holders of doctrines in the latter group do not agree on account of the burdens of judgment, problems of reason common to all human beings under conditions of freedom, and thus problems that do not compromise mutual respect. Holders of doctrines in the latter group will feel differently, he suggests, about holders of doctrines in the first group: they will think that if these people had corrected the errors in their reasoning, they would be maintaining the same thing that we maintain. He does not devote much thought to the large number of real people, reasonable in the ethical sense, who hold doctrines that he himself would probably rank in this category, such as New Ageism or astrology. Perhaps if he did consider these cases he would be willing to maintain that citizens who affirm them are unreasonable, thus sticking to the theoretical criteria he has advanced, but one might well feel that such

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a judgment shows too little respect for reasonable citizens (in the ethical sense). What dooms the whole project of offering theoretical criteria for reasonableness, however, so far as I can see, is the fact that the major religions, his central cases, fail to meet them, and they fail for reasons that, in the case of Christianity, go deep: a repudiation of theoretical reason that lies at the heart of that religion’s account of faith, in at least some central instances. Were Rawls to adopt the suggestion I have made, he would probably need to revise his account of the burdens of judgment; it is not clear what form that revised account would take. Perhaps it would now figure as simply a set of sociological observations about modernity, with no bearing on the normative distinction between reasonable and unreasonable doctrines. Perhaps he would need to jettison it altogether and simply say that whatever the sources of their disagreements, people who respect one another as human beings do not find themselves reaching agreement on religious matters. That would be a high price for him to pay, in terms of the theoretical ambitions of the program he and Charles Larmore share. I feel that it is not too high a price: by paying that price we purchase a wider and more inclusive notion of respect. It just doesn’t seem right for citizens to be looking into other citizens’ religions and asking how reasonable they are, provided that the doctrines they hold are reasonable in the ethical sense that is involved in the public political conception. Rawls appears to make a decisive move in the direction I favor in the section discussing overlapping consensus: for here he states that one way the movement from a mere modus vivendi to an overlapping consensus takes place is through the fact that citizens typically have “a certain looseness in [their] comprehensive views” (PL 159): “Most people’s religious, philosophical, and moral comprehensive doctrines are not seen by them as fully general and comprehensive” (PL 160), and this fact allows for “slippage,” as citizens come to endorse the political conception, often “without seeing any particular connection, one way or the other, between those principles and their other views” (PL 160). These important observations are not applied back to the account of the burdens of judgment or to the distinction between reasonable and unreasonable comprehensive doctrines, but they do at least indicate that Rawls is prepared to interpret his theoretical criteria very loosely. At any rate, readers must sort this out for themselves. A related issue on which Rawlsians will need to figure out what to say is the relationship between science and the public political conception.

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Rawls remained throughout his life deeply respectful of science. He appears to reject the idea that the findings of the major sciences are part of a comprehensive doctrine. He does not urge that scientific views be bracketed along with metaphysical, epistemological, and comprehensive ethical views. In discussing the duty of civility, for example, he specifies that citizens are to base their public justifications on “presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial” (PL 224). Although he does not specify which conclusions these are, he would appear to think that quite a lot of science falls in this category. Thus there is no reason why scientific reasoning and its conclusions cannot be invoked in public argument about matters of basic justice; nor is there any reason why the public political conception cannot insist that science be taught in all public schools. We would like to know a good deal more about Rawls’s concept of the noncontroversial. For any expert scientific conclusion, as the history of litigation shows, some expert witness can usually be found to dispute it. Does Rawls consider noncontroversial the conclusion that global warming poses a very serious threat to the earth’s future? That conclusion is indeed overwhelmingly endorsed by reputable scientists, but some can be found who deny it. Does he consider evolutionary theory in some form to be noncontroversial? Surely that theory in some form is mainstream science and as solidly grounded as most things in science. But, as current controversies over the teaching of evolution in the public schools show, many citizens of faith believe that the theory is in tension with their religious beliefs; indeed, a large plurality of Americans, largely for such reasons, do not believe in the truth of evolution. I am sure that Rawls would wish to defend the teaching of evolution and to do so by insisting that it stands outside the comprehensive doctrines rather than forming a contentious part of them. But how would he make his argument? What criteria for scientific acceptability would he use, and how would he work out the distinction between science and metaphysics? Here Rawls leaves a large challenge for his readers to meet. The future of political liberalism as a source of political stability and reconciliation in democratic societies depends on filling this gap in some convincing manner. European constitutional democracies do not appear to be deeply divided over the political role of science, but American disputes over the teaching of evolution have been bitter and pervasive; they show that many

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if not a majority of Americans do believe that central doctrines of recognized science conflict with religious doctrines that reasonable citizens hold. Another problem raised by the notion of reasonable comprehensive doctrines concerns its ethical limits: to what extent may doctrines that contain metaphysical elements that appear sexist or racist be counted as reasonable? Susan Okin has complained, with much plausibility, that Rawls appears to treat sex and race asymmetrically. Where race is concerned, a doctrine that supported slavery or even racial hierarchy would clearly be regarded by Rawls as unreasonable. Where sex is concerned, Rawls clearly means to count as reasonable the major religions in the United States, but, Okin argues, these religions are as unacceptable from the point of view of sex equality as the racist ones are from the point of view of racial equality. In responding to Okin in an earlier article, I said that I think she needs to consider further the difference between metaphysical claims of inequality and political such claims. Some major religions in the United States affirm metaphysical differences between women and men that affect, for example, the assignment of religious functions. Thus, women cannot be priests in the Roman Catholic Church or in the Mormon religion. In Orthodox Judaism women’s ritual role is constrained in many ways. Are such doctrines sufficient to make the religious doctrine unreasonable? Notice that in the case of race, the clearly unreasonable doctrines are doctrines that assert something that conflicts directly with the political conception: that African Americans should be slaves or that they should have unequal political rights. If we imagine, instead, a doctrine that urges, on metaphysical grounds, a differential assignment of ritual roles by race, it is not clear what Rawls would say about this doctrine. Consider an earlier doctrine of the Mormon religion, now abandoned, which argues that people of African descent cannot hold the priesthood. In at least some versions of the doctrine, its metaphysical grounds do not impugn the political equality of those citizens. (Or so George Romney insisted, during his ill-starred presidential campaign.) That doctrine would presumably be reasonable in Rawls’s view because it is compatible with equal respect; it is a doctrine that reasonable citizens might hold. If we interpret the religious inequality of women, in the religions in question, to have a parallel structure—it is a metaphysical doctrine that is fully compatible with affirming the full political equality of women—then the religions in

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question ought to count as reasonable comprehensive doctrines, whatever their metaphysics are. (I put to one side here the question I discussed previously, concerning whether such doctrines meet the additional theoretical requirements of reasonableness; they would appear not to have any special problems on that score.) Okin, responding in a subsequent article, says that if a religion maintains that women have the souls of pigs, that is likely to be incompatible with equal respect for women in the political arena, whatever the leaders of the religion say. If they affirm the political conception, they are just paying it lip service. I agree with Okin about this example. And I believe that she has raised a very important issue. It is very difficult to know what forms of metaphysical differentiation are truly compatible with full equal respect. But the case of the major religions in the United States is actually very complicated. Most do hold that women’s souls are similar to those of men, that women can achieve salvation, and that there are female religious leaders who deserve respect and even (in some cases) worship— although some continue to deny to women particular religious offices. Thus female saints are extremely important in Roman Catholic worship; the Heavenly Mother is an important part of Mormon theology, although the question whether one can pray to her is deeply disputed; Orthodox Jews express great reverence for the role of women in society, despite other aspects of their theology that seem to rank men ahead of women. Nor do most of these religions maintain anything in the public realm that is obviously incompatible with women’s full equality as citizens. Some people may feel that opposition to abortion is incompatible with women’s full equality as citizens, but that is a deeply difficult case on which arguments probably should not rest. Other metaphysical and ritual beliefs, such as taboos surrounding menstruation or ritual utterances that speak pejoratively of women, raise difficult issues that we must continue to debate. Because the family is part of society’s basic structure, thus part of the political conception, as Okin has valuably emphasized, any religion that holds that women should be subordinate in the family and that men should make all the decisions is probably unreasonable in Rawls’s sense; it would appear that Southern Baptists hold something like this, and therefore their doctrine should be regarded as unreasonable. Some forms of fundamentalist Islam will have similar problems. So Okin’s issue needs to be faced, and each example must be carefully considered. Moreover, the family is the locus of an important asymmetry between gender and race that we must carefully observe. A metaphysically sexist

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doctrine is likely to be taught to young girls early in life in a religious family; racist doctrines are unlikely to be taught to African American children in their families. But then there is an overlap between the metaphysical and the political: the metaphysical doctrine is being purveyed within an institution that is a part of the basic structure of society. For this reason a metaphysically sex-differentiated doctrine is likely to have a greater influence on equal citizenship than a racially differentiated doctrine. There is thus at least this asymmetry between gender and race, and it complicates the issue of reasonableness, even when the metaphysical differentiation does not pertain to political or even family hierarchy. I wish only to establish that the question Okin has raised is indeed difficult and complex. Not every case of metaphysical differentiation is a case of political unreasonableness. When the metaphysical differentiation takes the form of hierarchy, a tension will exist that people who affirm that doctrine will have to sort out, and there will be much strain. Often the religion will react to this strain by modifying its metaphysics, as has happened often in the past. Many religious bodies, including Conservative, Reform, and Reconstructionist Jews and most Protestants, now admit women as the ritual and administrative equals of men. At the limit, we may judge that the metaphysical doctrine is so denigrating of women, and so resistant to change, that it is indeed incompatible with affirming sincerely their fully equal citizenship.

VII. THE DUTY OF CIVILITY Rawls’s basic aim in Political Liberalism is to show that a liberal political conception of justice can be the object of an overlapping consensus among people who hold a wide range of different religious and secular comprehensive conceptions of the good. Only in this way, he believes, can the conception be justified to citizens of faith, and the wholehearted acceptance of the political conception by citizens of faith is in his view a key to the very survival of liberal democracy. Many aspects of Rawls’s program have won broad acceptance among thinkers representing a range of religious traditions. But one important part of his argument has occasioned ongoing controversy: the characterization of public reason and the related arguments concerning the “duty of civility.” This controversy was of great concern to Rawls. To address it, he revised his view in two successive stages: first, in the introduction he added to the paperback edition of

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Political Liberalism in 1996, and then, extending and clarifying this revision, in the important article “The Idea of Public Reason Revisited.” The article is crucial to a full understanding of Rawls’s view on this important topic. Although Rawls’s revised view is surely not beyond criticism, it is important to distinguish criticism based on misunderstanding from criticism of the view as it is presented; to do this we need to spend some time clarifying the notion of public reason. According to Rawls, citizens in a constitutional democracy engage in many types of reasoning. Many of these go on within what he calls the “background culture,” a concept that includes both what is commonly called “civil society” and many parts of the political culture itself. It is very important to recognize that Rawls holds an extremely inclusive view of the forms of reasoning that can and should occur within the background culture. Citizens may appeal to any aspect of their comprehensive doctrine at any time, and Rawls does not even introduce any sort of moral ideal concerning how they ought to speak to one another. In this respect his view of public debate is much less restrictive than that of Jürgen Habermas, or the view of democracy advanced in some American writings on “deliberative democracy.” There are certain issues, however, in discussing which citizens ought to keep firmly in mind the fundamental commitment to mutual respect and reciprocity on which the entire political conception is based. These are what Rawls often calls “constitutional essentials and matters of basic justice.” These include both structural issues—how basic political institutions are defined and related to one another, “the powers of the legislature, executive and the judiciary; the scope of majority rule” (PL 227)—and the definition of fundamental “equal basic rights and liberties of citizenship . . . such as the right to vote and to participate in politics, liberty of conscience, freedom of thought and of association, as well as the protections of the rule of law” (227). In the economic sphere, a social minimum “providing for the basic needs of all citizens” is an essential, but Rawls’s own more demanding and contentious “difference principle” is not. It is extremely important to recognize how specific and narrow the range of issues that trigger the duty of civility is. “The limits imposed by public reason do not apply to all political questions” (PL 214). In such fundamental areas, Rawls argues, citizens ought to reason with one another using ideas and conceptions that all citizens can be expected not only to understand but also to accept. Our “exercise of political power is proper and hence justifiable” only when it is exercised in accordance

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with principles that all citizens can be expected to accept. This being the case, citizens ought to argue for these principles using concepts and premises that they can expect other citizens, holding different comprehensive doctrines, to accept. To argue in this way is to show adequate respect for one’s fellow citizens, who can be expected to hold a wide range of different comprehensive doctrines. (Although Rawls does not make this point sufficiently explicit, he is clearly thinking of discussions in the context of political decision making, not the sort of discussion of constitutional ideas and conceptions in which citizens often engage in informal social associations in the “background culture.”) What can such citizens expect one another to share? The “freestanding” concepts, principles, and arguments of the political conception (or family of conceptions): that is all. So, they should make their arguments in these fundamentally important matters using the materials of the political conception and that alone. That is what Rawls means by the “duty of civility.” This duty “also involves a willingness to listen to others and a fair-mindedness in deciding when accommodations to their views should reasonably be made” (PL 217). The duty of civility is a moral ideal and has no legal status. Thus there is absolutely no question of citizens being restricted in their speech, or given lower civic status, on account of their nonobservance of this ethical duty. (People who speak of Rawls “silencing” religious citizens may possibly have misunderstood the nature of Rawls’s recommendation.) And it obtains in areas that could not possibly even be known to others, much less enforced by them: thus, it obtains not only when citizens are acting as legislators making proposals or as judges deciding cases involving constitutional essentials but also when they are simply voting in the privacy of the voting booth, on issues that involve such essentials. Even then, says Rawls, they ought to endeavor to vote not simply in order to advance personal interests but on the basis of reasons that they can expect their fellow citizens to share, as elements in the political conception they also share. Voting, although secret, is not a merely private matter, where such fundamentals are at issue: a moral ideal of reciprocity indicates that citizens ought to respect one another even when they can get away (in terms of ethical criticism) with not doing so. As I have mentioned, Rawls made it increasingly clear, in the later versions of his view, that the political conception should not be understood as a single account of political justice but rather as a family of such accounts, the members of which would change over time. There are many

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acceptable liberal political conceptions that might fall within the overlapping consensus (see PL l–li, IPRR 140–141). Rawls’s own conception is only one member of this family of “reasonable political conceptions.” Another, he says, would be Habermas’s discourse conception; another would be “Catholic views of the common good and solidarity when they are expressed in terms of political values” (IPRR 142). New doctrines may also be proposed over time, and this is important: “otherwise the claims of groups or interests arising from social change might be repressed and fail to gain the appropriate political voice” (IPRR 142–143). But “[t]he limiting feature of these forms is the criterion of reciprocity, viewed as applied between free and equal citizens, themselves seen as reasonable and rational” (IPRR 141). Thus Rawls implies that public reason is never univocal and may contain within itself many types of disagreement. Argument on matters of basic justice will never be the mere application to a situation of principles already spelled out. (He also stresses that there may be many differences about how to assign weight to relevant considerations in a particular case.) Public reason is not secular reason, Rawls stresses (IPRR 143). By secular reason, he means reasoning in terms of a nonreligious comprehensive doctrine. But such doctrines are treated exactly the same way we treat religion: that part of the doctrine that figures in the political conception is a legitimate source of arguments in public reason. Utilitarians and other holders of ethical comprehensive doctrines are asked to be just as abstemious as religious believers. What, however, becomes of the nonshared aspects of the comprehensive doctrines of citizens? When may citizens who accept the ideal of civility invoke aspects of their comprehensive doctrine that do not figure in the political conception or conceptions? Here again, Rawls’s position evolved in response to criticism. In Political Liberalism itself, he contrasts two different approaches one might take to this question. The first, which he calls the “exclusive view,” holds that “reasons given explicitly in terms of comprehensive doctrines are never to be introduced into public reason.” The second, which he calls the “inclusive view,” holds that in certain situations citizens may present the “basis of political values rooted in their comprehensive doctrine, provided that they do so in ways that strengthen the ideal of public reason itself ” (PL 247). Rawls now argues that the choice between the two conceptions should be made by asking which one “best encourages citizens to honor the ideal of public reason and secures its social conditions in the long run in a well-ordered society” (PL 248). In

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terms of this question, the inclusive view seems to him superior, because it is more flexible, allowing citizens to advance the political conception in different ways as the situation seems to demand. For example, in a divisive debate about government support for religious schools, it may prove helpful, and stabilizing, to encourage religious citizens to express their arguments in terms of their comprehensive doctrine, if they do so in order to show “how their comprehensive doctrines do indeed affirm” the essential political values (PL 248–249). In a different case, suppose society is not well ordered and there is a profound division about constitutional essentials, as happened over slavery. In this case, the abolitionists were well advised to invoke the religious sources of their views, which were very meaningful for many people; the same thing happened in the civil rights movement, except that there Martin Luther King Jr. could also appeal to already established constitutional doctrines. Rawls argues that neither the abolitionists nor King violated public reason, since they invoked religion “as the best way to bring about a well-ordered and just society in which the ideal of public reason could eventually be honored” (PL 250). Despite Rawls’s support for the inclusive view, some religious critics felt that the view was not inclusive enough. Philip Quinn focuses on cases in which public reason fails to provide uniquely reasonable answers to troubling questions. Rawls’s ideal then asks us to try for a balance of values that we think other citizens will see as reasonable, or at least not unreasonable (PL 253). Quinn argues that in order to show our fellow citizens how reasonable persons can affirm the balance of values we favor, we may have to introduce elements of our comprehensive doctrine, and he worries that the requirement that citizens do this in ways “that strengthen the ideal of public reason itself ” may possibly prove too narrow. One cannot be sure what the outcome of introducing a part of one’s comprehensive doctrine will be, and Quinn suggests that it may be unfair to require citizens to make such calculations before they explain themselves in ways that may indeed be illuminating and helpful. Whether this criticism is a strong one depends, I believe, on the further interpretation of Rawls’s requirement. If it is understood as a requirement on the intentions of citizens, it is possible that it is not too narrow; if, however, the requirement is one of rational prediction—citizens can introduce such elements only when they have good reason to expect that doing so will strengthen the ideal of public reason—that may indeed be too limiting, requiring a time-consuming and indeterminate inquiry before expression is given to something citizens may feel helpful. Instead

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of making the condition more explicit, however, Rawls removes it, as we shall see. Nicholas Wolterstorff focuses on cases where religious citizens are moved to object to the treatment of the poor in their society. Such citizens, he says, will rightly feel themselves “silenced” by Rawls’s constraints, since they will want to appeal to their religious doctrines in saying why this treatment is wrong. Why should I pretend these are not my real reasons? Rawls’s doctrine prevents religious citizens from having a “religiously integrated existence,” forcing them to make a sharp division between reasons that they link closely in their own minds. It is not at all clear to me that Rawls’s “inclusive view” cannot handle the actual example, which seems similar to Rawls’s own examples of King and the abolitionists. One might say, too, that part of living on respectful terms with others in a pluralistic society is, precisely, learning how to segment one’s existence in certain ways; insofar as Wolterstorff objects to this segmentation, he may be objecting to the very idea of a pluralistic liberal society based on the values of mutual respect and reciprocity. Paul Weithman makes a criticism that is, to my mind, especially telling because it accepts Rawls’s ideal of public reason and finds fault with the doctrine of civility in terms of that idea. Religious citizens in a pluralistic society need to understand one another, lest divisive conflicts emerge, says Weithman. Often the best way to promote this mutual understanding is to encourage them to bring their doctrines forward in public debate, presenting in religious terms, for example, a narrative of the oppression their group has suffered. Such religiously inflected narratives are familiar to Americans, and they are often more explanatory and more gripping than terms drawn from the abstract nature of the political conception. Mutual trust and respect, far from being hindered by such appeals to religion, may be strengthened thereby. Sometimes it is helpful to conceive of one’s fellow citizens as members of a specific group whose narrative we know; such contextualization often helps citizens see how the values others invoke are in fact supportive of the key ideas of the political conception. Weithman cites the case of Abraham Heschel, who sent a telegram to President Kennedy urging him to support an expensive plan to aid African Americans; he said that citizens of all faiths should support such a plan because “we forfeit the right to worship God as long as we continue to humiliate Negroes.” This invocation of religion, Weithman argues, far from showing disrespect to fellow citizens, actually helps them

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understand the seriousness and force of Heschel’s proposal. Yet Rawls might well exclude it, even on the “inclusive” view. I am less convinced than Weithman is by his example. First of all, it is far from clear that an expensive plan of aid to minorities is among the “constitutional essentials” with regard to which Rawls’s duty holds. Given that the difference principle is explicitly said not to be an essential, it is likely that this plan would not be either. If it is not an essential, then conversations regarding it are not regulated by any ethical duty; they are part of the very inclusive give and take that Rawls envisages going on in the “background culture.” But suppose that it were an essential: isn’t there a problem about justifying a constitutional matter with reference to a monotheistic conception of God, in a nation containing polytheists and nontheists of many kinds, Hindus, Buddhists, Confucianists, Taoists, atheists, and so forth? It is not clear that adequate respect is being shown to those religious and nonreligious minorities when public discourse justifies a fundamental matter in terms of God’s judgments on our deeds. On the other hand, we can agree with Weithman to at least this extent: it is helpful to understand where our fellow citizens are coming from in such matters, and to that extent unhelpful to invite them to conceal their views. An important discussion of the whole issue of civility and restraint is offered in Christopher J. Eberle’s book Religious Conviction in Liberal Politics. Because Eberle’s is a book-length treatment of the issue, discussing not only Rawls but many other writers and advancing an original view of the issues, it cannot be adequately treated here. Its rigor and care make it essential reading for anyone interested in these questions. It is difficult even to sketch its treatment of Rawls, because Eberle’s questions and categories do not always map precisely onto Rawls’s, as is natural in a major constructive work, and because Eberle, focusing on Political Liberalism, does not discuss in detail the successive modifications of Rawls’s view in the 1996 preface and in “The Idea of Public Reason Revisited.” But let me try to state the essentials of his position. Eberle agrees strongly with Rawls that citizens in a liberal democracy have a duty to pursue a public justification for coercive laws and policies, and he agrees, as well, that a public justification ought to be one that citizens with different comprehensive views would find convincing and one that involves a conscientious attempt to understand other people’s convictions and to engage in respectful dialogue with them. But what if they try and try but are unable to find such a public justification, yet, on the basis of their religious

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convictions, they believe that the matter is of enormous moral urgency? (His central example involves financial aid to the poor in other nations.) In such a case, Eberle argues, respect for one’s fellow citizens does not require restraint: believers may, compatibly with respect, offer their moral or religious reasons as reasons for public action, and they may rightly vote and act on the basis of those convictions. Their situation is utterly different ethically from that of a person who simply offers religious reasons without a conscientious prior search for public reasons. This objection to Rawls’s view seems to me a strong one. Whether it is really an objection to Rawls’s “inclusive view” remains unclear to me, since Rawls treats as a special case the case in which society is not well ordered and citizens plausibly feel that their nonpublic arguments are necessary for the establishment of political justice, as might have been the case with the abolitionists and Martin Luther King Jr. (PL 249–251). In any case, it seems to me that the objection is well handled by Rawls’s later modifications of his view, to which I now turn. In response to criticisms of his doctrine of civility, Rawls made an important modification in his account, which he gives briefly in the 1996 introduction and more fully in “The Idea of Public Reason Revisited.” Rawls now introduces what he calls the “proviso”: reasonable comprehensive doctrines may be invoked at any time, even in fundamental matters, “provided that in due course public reasons, given by a reasonable political conception, are presented sufficient to support whatever the comprehensive doctrines are introduced to support” (PL li–lii). In IPRR, he expresses the proviso as follows: “reasonable comprehensive doctrines, religious or nonreligious, may be introduced in public political discussion at any time, provided that in due course proper political reasons—and not reasons given solely by comprehensive doctrines—are presented that are sufficient to support whatever the comprehensive doctrines introduced are said to support” (IPRR 152). (Here, as before, we need to think of the conditions as applying to discussion in the context of public decision making, not to informal discussions of constitutional essentials in the “background culture.”) Rawls acknowledges that this new view, which he calls the “wide view of public political culture,” leaves a lot to be specified later on. Who must fulfill the proviso, and must it be the same person who invokes the comprehensive doctrine? What does “in due course” mean? In the 1996 introduction, Rawls seems to hold that it would be important, ultimately, to produce a “clear and established” account of how the proviso is to be

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appropriately satisfied (PR liin26). In “The Idea of Public Reason Revisited,” he adopts a more flexible and pragmatic approach. Such matters, he says, must be worked out “in practice and cannot feasibly be governed by a clear family of rules given in advance” (IPRR 153). The fuller discussion of the proviso in “The Idea of Public Reason Revisited” makes it clear that Rawls means to leave no doubt that political liberalism acknowledges the depth of comprehensive doctrines in peoples lives: citizens are to recognize “that the roots of democratic citizens’ allegiance to their political conceptions lie in their respective comprehensive doctrines, both religious and nonreligious.” Citizens are not asked to conceal those roots. To reveal them strengthens stability, rather than threatening it. They are, however, asked to bring them forward in a manner that is ultimately respectful of others who believe differently. Once again, Rawls cites the abolitionists and the civil rights movement as cases fulfilling the proviso—although without emphasizing, as he earlier did, the distinction between well-ordered and non-well-ordered societies (PL 154). Sometimes, Rawls adds, it is positively good to invoke a comprehensive doctrine since then people can better understand how religious citizens can square their comprehensive doctrine with the political conception: introducing the doctrine opens the way for explanations that are very helpful. He adds several suggestive passages about some further ways in which comprehensive doctrines may be invoked: by “declaration” (statements to one another of each person’s own doctrine), “conjecture” (a good-faith attempt to characterize reasons someone of a different doctrine might have for supporting the public political conception), and “witnessing” (expressing a principled faith-based reason for dissenting from an established policy that is agreed to be just, although one’s own doctrine does not support it—the example is Quaker pacifism) (PL 155–156). In these revisions Rawls has gone a very long way toward answering his religious critics. In particular, Eberle’s critique is well accommodated, for the reasonable citizen may now offer his or her religious reasons, continuing over time to pursue a search for public reasons. All that is required is that the citizens have a conscientious commitment to finding such reasons in due course and, perhaps, some degree of confidence that this will ultimately be possible. Some may feel that Rawls has gone too far, in that the elasticity of the proviso allows all sorts of religious appeals in politics, with no clear way of showing that civility has been violated. Those who feel that he has not gone far enough need to bring forward cases where the wide view gives bad guidance. Rawls himself invites this

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sort of challenge, arguing that we cannot assess further criticism “in the abstract independent of actual cases” (PL liii).

VIII. THE PSYCHOLOGY OF LIBERALISM A Theory of Justice contained a fascinating section on moral development, in which Rawls delved into questions of developmental psychology in order to show how the principles of a just society could reproduce themselves over time. Although the picture of human development he advanced there was deliberately a broad and inclusive one, taking no stand on many controversial matters, nonetheless Rawls came to feel that it was unwise for a political conception such as his to include such definite and potentially controversial statements on matters of human psychology. Just as metaphysical and epistemological matters must be held in abeyance, in order to show proper respect for the different traditions regarding them in the different comprehensive doctrines, so too with matters of psychology: any detailed account of human development might presume too much to be the object of an overlapping consensus. Rawls did not close the door on the use of psychology within the political conception. Indeed, just as he insists that a political conception of the person can be the object of an overlapping consensus, so too he insists that a philosophical moral psychology may play a role inside the political conception (PL 81–88). “It is not a psychology originating in the science of human nature but rather a scheme of concepts and principles for expressing a certain political conception of the person and an ideal of citizenship” (PL 87–88). The account has to meet the needs of political life, and it has to be one that people can understand and apply, for example in the education of children (see PL 199–200). But it is not put forward as a scientific or metaphysical theory; instead, it is a part of the political conception. When Rawls discusses the moral sentiments in A Theory of Justice, he makes it clear that he rejects a reduction of these to “characteristic sensations and behavioral manifestations” (TJ 487), preferring (unlike Kant) a more richly cognitive account. For this he is to be given high praise, for the discussion of emotions and their cognitive dimension was not far advanced in the recent Anglo-American philosophy of his time. Moreover, he gives these emotions, including indignation and resentment, a significant role in relation to the sense of justice (TJ 488–489). Even though such feelings may be “unpleasant,” he argues, “there is no way for

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us to avoid a liability to them without disfiguring ourselves. This liability is the price of love and trust, of friendship and affection, and of a devotion to institutions and traditions from which we have benefited and which serve the general interests of mankind” (TJ 489). I see nothing to suggest that Rawls has abandoned this general view of emotions in Political Liberalism. Indeed, in the account of public reason Rawls makes it clear that speeches expressive of both indignation and compassion (the speeches of the abolitionists and Martin Luther King Jr.) are good examples of how public reason addresses the evils of a non-well-ordered society The moral psychology Rawls introduces in his explicit consideration of psychology in Political Liberalism (82–84) builds on the idea that emotions are not mere urges but respond to reasons. He argues persuasively that there are motivations that are conception dependent and principle dependent (PL 82–84). But because of Rawls’s desire to keep the psychology thin and relatively uncontroversial, he avoids commitment on some issues that one might think crucial to the success of his project, issues connected with the role of emotion in political stability. To see the problem, a historical digression is useful. In the tradition of historical reflection on religious toleration and respect, liberal thinkers sometimes try to solve the problem of mutual respect and its stability by institutional solutions alone, simply hoping that if the institutional structure is correct people will learn to behave well to one another. Such, in effect, is Locke’s solution, as we have seen, although he adds that religious leaders should tirelessly remind their followers of the duty of toleration and civility. But Rousseau understands that the forces in human beings that militate against mutual respect are very powerful; therefore he proposes, as we saw in section III, that a “civil religion” should teach all citizens useful moral sentiments, including sentiments supporting patriotism and toleration. This civil religion, as we have seen, is enforced in quite illiberal ways. Because such a cure seems worse than the disease, Kant, who follows Rousseau rather closely in psychological matters, relies on Lockean institutions alone to solve the problem of toleration within the political conception. Having eloquently argued for the existence of “radical evil,” that is to say a tendency to behave badly to others that is deeply rooted in human nature prior to any specific acculturation, in the form of a tendency to compete and put other people down, Kant then leaves it to each person to solve the problem by joining an appropriate ethical community that will, it is hoped, bolster the good tendencies and restrain the bad. Publicly and

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politically, all Kant feels that he can suggest, consistently with his liberalism, is wide protection for free speech and critical scholarship, including state subsidies for scholars and universities. Given that Kant believes that most actual churches are a very bad influence on people’s sentiments and actions, this leaves liberal values in a precarious position. Our own era has shown the critical importance of public values and public culture in sustaining sentiments of the respectful sort and undermining divisive and destructive sentiments. To take just one example, the history of India after Nehru shows that the liberal side utterly failed to provide a meaningful and effective program of grassroots education and acculturation, mobilizing people around values of pluralism and mutual respect by appeal to powerful emotions, rituals, images, and traditions. Meanwhile, the Hindu right, teaching intolerance and the domination of one tradition over its rivals, crafted a highly effective program of public mobilization that by now has rendered pluralism in India deeply unstable. So Kant’s institutional solution to the problem of toleration leaves liberalism in what history shows us is a dangerously fragile condition; so too does Rawls’s solution, insofar as he is reluctant to commit himself to anything more than a very thin political psychology as the basis for moral education and insofar as he focuses only on principle-based and conception-based moral sentiments as the main psychological sources of stability in the well-ordered society. In the process he fails to consider ancillary motives and psychological principles that may actually be essential sources of political stability, including stability for the right reasons. These sources include symbol, poetry, narrative, jokes, and memories. In order to consider the force of this contrast, let me introduce an analogy. When children attend a Passover seder, they are forming emotions that have as their direct object the moral ideas contained in the seder: anger at injustice, love of freedom, compassion for subordinated peoples. They form these emotions, however, not just in response to abstract propositions concerning freedom embodied in the text. Their emotional responses are mediated by the poetry and the stories and songs; by the presence of beloved family members gathering for a special occasion; by good food and the opportunity to stay up late; by silly jokes and games; by the imaginative illustrations in their edition of the Haggadah text; and, as time goes on, increasingly by the memory of all these sounds and sights and tastes, and the thought of loved people, alive and dead. The Haggadah itself (the ritual text) is constructed so as to encourage a type of emotional development that moves in a nonlinear way, backward and forward, between loved particulars and the general ideas that are being conveyed.

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(That is one reason why artistic illustration has always played a central role in the transmission of the text.) The stability of the child’s resulting moral emotions depends in a significant way on this dialectical process. Now obviously the whole process of moral instruction would have failed if, as sometimes happens, children only remembered the jokes and not the deeper moral meanings; thus people usually spend time talking about those meanings and asking children to do so. And the process would have failed in a more egregious way if, as sometimes happens, children learned to have compassion, or a love of freedom, only for Jews; thus we are well advised to spend time talking about other comparable examples of oppression in our own society and indeed in the Middle East. Nonetheless, it would not be wise to strip away the songs and the jokes, for in them the essence of moral memory is situated. In that way the authors of the Haggadah were wiser morally than some modern Reform Jews, those who disdained ritual in favor of a pure abstract moral form of discourse. Sensory particulars are the vehicle for the continued life of the past. Now let us think of the well-ordered society. My suggestion is that the moral emotions of citizens in a Rawlsian well-ordered society are, or should be, like this: that is, fixed on the moral meanings of the political conception but held to those meanings by rituals and narratives of a kind that must be more particular, more uneven, more aesthetic, more tragic, more silly, than anything explicitly envisaged in Rawls’s text. These rituals and narratives might possibly be confined to what Rawls calls the “background culture”—but on the other hand, inasmuch as they are essential vehicles of public reason, there is no reason to confine them to that role. Candidates for election, legislators, even judges might use such symbols and poetic references and songs and silly stories, if they do so in a way that reinforces and deepens the moral meaning of the political conception. (Obviously respect will place some limits on the ways in which humor can enter the public conception.) This means that we have the same dangers to face as in the case of the seder: we must be sure that citizens develop a type of patriotic loyalty that is reliably linked to the deeper principles of the political conception, that does not exalt America (say) above other nations, and that focuses on human suffering wherever it occurs. To work out an account of this sort of patriotism seems to me possible within the constraints of political liberalism and is a development of Rawlsian notions that remain largely inchoate in his text. The history of the civil rights movement in America contains many examples of such appeals to emotion in the context of political values. The stirring rhetoric of Martin Luther King Jr. had (and still has) emotional

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power in part because of the propositions it contains, but in part, as well, because of its rhythmic and poetic qualities and because of the way in which it draws upon the tradition of African American preaching. The role played by the blues and gospel in the movement for racial equality is a fine example of how appeals to emotion and imagination that cross lines of class and ethnicity have a critical role to play in unifying society behind key political values and promoting their stability. When W. E. B. Du Bois chose epigraphs to introduce the chapters of The Souls of Black Folk, his important statement about racial equality, he chose not literary texts but phrases of music taken from the blues—apparently feeling that these would bring readers together across lines of race and class more surely than any literary reference. Similarly, it seems not wrong to say that Billie Holiday is a more important cause of political stability than most politicians (ironically, given the many instabilities and injustices in her life). Again: such uses of music, art, and rhetoric need not be confined to the “background culture” since they may play a key role in the transmission of central political values. I see nothing in Rawls’s account to preclude such an expanded role for emotions inside the political conception. More generally, it seems likely that we can develop a political psychology that can become the object of an overlapping consensus in a pluralistic society and that would address the problem of “radical evil” much more fully than Rawls was willing to do. Such a psychology would have to make some conjectures about the likely roots of intolerance and bad behavior among groups and indeed about the reasons for the whole phenomenon of banding together into rivalrous groups. (I have tried to do some part of this in a book on disgust and shame, though that is only a part of the set of issues one would need to address and only one of a family of ways in which they might be addressed.) It would then need to devise public and educational strategies for countering prejudice, intolerance, and hierarchy in the education of children and to do this in a way that is psychologically accessible and meaningful, not excessively abstract. Of course in the process freedom of speech would need to be most zealously protected, as would the presence of dissident and unpopular views within a critical public culture. Rawls has already taken care of this with his highly protective doctrine of free political speech. (Some may feel that he sets the bar too high by requiring a grave constitutional crisis for any regulation of political hate speech; his dissatisfaction with the current situation in U.S. law in this area may be misplaced. I see no reason why the current “imminence” requirement cannot adequately protect political

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speech.) And education would surely be urged to focus on robust criticism and the respectful expression of dissent. But those foci are not at all incompatible with the fostering of values of respect and mutuality in education—for example in the ways in which the histories of the religions and the races are portrayed in textbooks and in other public materials. I see no reason why political liberalism cannot take on this psychological task, and I believe that it must, if societies based on ideas of respect and reciprocity are to remain stable.

IX. AN INTERNATIONAL OVERLAPPING CONSENSUS? One aspect of the transition from A Theory of Justice to Political Liberalism that most disturbed many fans of the former work is Rawls’s apparent shift in the direction of something like cultural relativism: the political conception is justified in terms of certain ideas understood to be implicit in the traditions of a liberal constitutional democracy. Rawls’s frequent discussions of the history of Europe and North America indicate that he thinks of these traditions as Western, and of the aftermath of the Reformation and the wars of religion that followed as a distinctive cultural formation. So it may be that Rawls believes his political conception justified only by people living in Western Euro-American democracies that are the heirs of that tradition. This is disappointing to people who believe that something like this political conception can be justified as a good one for nations all around the world and even, perhaps, as a basis for transnational agreements. It is all the more disappointing since many non-Western democracies are confronting the very issues of pluralism and religious tension to which Political Liberalism is addressed. India, Israel, Bangladesh, Lebanon, Turkey, and others seem tailor-made for Rawls’s ideas, and those ideas are eagerly appropriated by academics and politicians in such nations, in the hope of providing an account of how pluralistic democracy can be stable for the right reasons. (I have heard such discussions in India, in Lebanon, and between Palestinians and Israelis: Rawls’s text seems to provide a hopeful focus for constructive political thinking.) Rawls did of course address this question in some ways in his final book, The Law of Peoples (1999), but this work was the source of yet further discontent, since Rawls there holds that only a thin menu of human rights, not including equal freedom of speech or equal liberty of conscience, could be justified transnationally. Since that work pertains only

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to the law of peoples, not to the internal justification procedures of each nation, I shall not discuss it further at this point, although I shall briefly return to it at the end of this section. I shall try to focus on the text of Political Liberalism and what it implies for Rawls’s view of these matters. We must begin by distinguishing several questions: 1. Does Rawls’s account of justification really shift from A Theory of Justice to Political Liberalism, and what is the precise nature of that shift? 2. Does Rawls really relativize justification to the Western tradition, or does he admit all liberal constitutional democracies? And, if the former, does he give a good analysis of what he takes to be the distinctive history of Western democracies? 3. Can a reader who accepts Rawls’s political conception detach it from these limits without violating its deepest principles and motivations, and how would such a Rawlsian answer Rawls’s legitimate concerns about justification and stability? 4. Can a Rawlsian reasonably commend something like his norms as good norms for transnational society? To reply to the first question, we must begin by noticing that Rawls’s idea of justification was always holistic and “internal.” In A Theory of Justice, the search for reflective equilibrium involves beginning with “considered judgments” and systematically thinking about the alternative conceptions with those convictions in our minds, striving for the best overall coherence and fit in the set of judgments and theories taken as a whole. Nothing is sacrosanct. We may revise a deeply entrenched judgment if we need to do so to keep a theory that is appealing and consistent with most of our judgments; we will often reject a theory that seems promising if it is out of line with our judgments. What is new in Political Liberalism is, first, a shift from a one-to-one “Socratic” conception of justification to a public political conception, in which “all citizens can examine before one another whether their political and social institutions are just” (PL 9); and, second, the insistence that the conception to be justified must be built from, and expressed in terms of, “certain fundamental ideas seen as implicit in the public political culture of a democratic society” (PL 13); usually Rawls adds that the democracy is “constitutional.” The “tradition of democratic thought,” whose content is “familiar and intelligible to the educated common sense of citizens generally” serves as “a fund of implicitly shared ideas and principles” (PL

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14). In that sense, the conception “starts from within a certain political tradition.” These two shifts are clearly connected with the central issue of stability for the right reasons. Rawls plainly believes that a conception cannot be justified unless we can show that it can be stable over time for the right reasons, and he also seems to think that we cannot show this unless the conception uses materials that are already implicit in the political tradition. Of course he knows that these ideas (of “free and equal citizens,” “fair terms of cooperation,” etc.) are far from the only ideas embedded in the tradition; many ideas that are in tension with these ideas are present also. But he does rely on the salience and longevity of these ideas. Unlike Locke, he is not trying to offer reasons for toleration to people who do not already in some sense believe strongly in toleration. In his “Reply to Habermas,” Rawls distinguishes three types or levels of justification. Pro tanto justification takes place when the political conception is duly laid out and it is shown how it answers a wide range of political questions, so that it seems to be complete (PL 386). Second, full justification is carried out “by an individual citizen as a member of civil society,” by “embedding [the political conception] in some way into the citizen’s comprehensive doctrine as either true or reasonable” (PL 386). This part of the justification process corresponds most closely to the Socratic account of justification in A Theory of Justice. At this stage, the person does not ask whether other people accept the political conception—although her considered judgments are likely to be widely shared. Finally, the doctrine must be justified publicly by political society. This step happens only “when all the reasonable members of political society carry out a justification of the shared political conception by embedding it in their several reasonable comprehensive views,” in the process taking one another into account (PL 387). For this level of justification to occur, the society must be one that is already well ordered by the political conception. Justification requires the existence of an overlapping consensus and records the fact of that consensus. In Rawls’s view, then, none of the existing nations, Western or nonWestern, can carry out the third level of justification, because none is well ordered in accordance with his political conception or any of the family of reasonable political conceptions. So the fact that there is not currently an overlapping consensus about Rawls’s ideas (or other ideas in that family) does not disqualify any particular society from being the sort of society for which such a conception may over time be fully justified. As Rawls

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explicitly says, “political liberalism looks for a political conception of justice that we hope can gain the support of an overlapping consensus of reasonable religious, philosophical, and moral doctrines in a society regulated by it” (PL 10). That is of course very different from claiming that the society in question must already have such a consensus. Nonetheless, even in the absence of such a consensus, Rawls does require that the core ideas of the conception be drawn from the political tradition of a constitutional democracy. At times, in talking about the Reformation and its aftermath, he indicates that this history is a key part of his political conception: “the historical origin of political liberalism (and of liberalism more generally) is the Reformation and its aftermath, with the long controversies over religious toleration in the sixteenth and seventeenth centuries” (PL xxvi). He argues that the Reformation introduced something “new”: namely the idea of “a transcendent element not admitting of compromise.” He argues that neither the Greco-Roman world nor the medieval world contained this idea (PL xxiii–xxviii). So these historical ruminations, if we connect them closely to the definition of political liberalism, suggest a further narrowing: political liberalism must be made up from the traditions of nations that have experienced the particular sort of clash that the Reformation inaugurated. This might mean not only that the account is justifiable only within, and for, Western constitutional democracies but also that it is justifiable only within, and for, democracies that were seriously marked by the experience of the Reformation and the Wars of Religion: thus, perhaps not Finland, or Italy, or Russia, or the nations of Eastern Europe, or Greece, or Australia or New Zealand, all of whose histories are significantly different from those of Germany, France, the Netherlands, Sweden, Spain, Great Britain, Ireland, Canada, and the United States, which are the central cases for Rawls’s historical idea. (Of course these nations were all in contact with the nations who did experience this clash in its most acute form, but interaction is another matter, and I shall return to that later.) There are many difficulties with Rawls’s account of European and U.S. history. For one thing, it underestimates the amount of conflict over comprehensive doctrines within the Greco-Roman world, where Asian cults claimed their supporters; where Dionysian cults contended uneasily against the civic religion in which a tamed Dionysus also played a part; in which philosophical doctrines themselves competed, making strong claims to transcendence and authority; and in which, as time went on, the ideas of Judaism and Christianity increasingly competed for people’s

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allegiance with more traditional polytheistic forms of worship. But let us leave this to one side since such observations are not pertinent to our question concerning how far we may extend political liberalism. What is more serious is that Rawls seems totally to neglect the existence of non-Western constitutional democracies with their own traditions of toleration and accommodation: India, Bangladesh, South Africa, Turkey, Japan, and by now many others. In the case of Turkey and India, the history of clashes and accommodations is long and complex. For India one may plausibly argue that ideas of religious respect and toleration are far older than they are in the Western tradition: the edicts of Ashoka, himself a convert from Hinduism to Buddhism in the third century BCE, promulgated a norm of mutual respect and toleration. So too did the official policies, much later, of several leading emperors of the Moghul Empire. In the case of Turkey, the Ottoman Empire had well-known policies of religious accommodation. None of these is identical with the norms favored by Rawls, but then no norm that old is identical with Rawls’s norms. Even the Peace of Westphalia established religious pluralism among nations, allowing repression within each nation. And the U.S. founding, which guaranteed nonestablishment and free exercise at the federal level, allowed individual states to continue their religious establishments; even the Free Exercise Clause was not applied to the states until after the Civil War, although most states had similar clauses in their state constitutions. The extension of nonestablishment to the states is relatively recent and disputed in its detail. In short, if we hold that a political tradition of relevant ideas is a necessary basis for political liberalism, we ought to hold that this condition is fulfilled by India, South Africa, Turkey, and, I would say, many if not most of the existing constitutional democracies of the world, who all have traditions, longer or shorter, of committing themselves to similar ideas—not only the idea of toleration itself but also related ideas of equality, respect, and human dignity. (Indeed, one might argue that equality is a far more prominent feature of the Indian and South African constitutional orders than it is of the United States, if we take equality to include equal access to the political process, a matter particularly central to Rawls and at issue in his strong critique of our campaign finance process.) What about nations that are not currently liberal constitutional democracies? Can one not argue that Rawls’s ideas are good ones for such nations too? After all, there is nowhere in today’s world where ideas of human rights, human dignity, and human equality are not widespread; even the idea of “fair terms of cooperation” is very broadly disseminated.

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Even in China, where there is not yet a liberal constitutional democracy and where both the recent Marxist tradition and older traditions are in many ways at odds with the key ideas in Rawls’s conception, there are also longstanding seeds of such ideas, and the modern debate has drawn on them, moving liberal ideas into the forefront of political thinking. At this point, we run into the key issue of stability: the more radical a conception is, within a given society, the more difficult it will be to maintain that Rawls’s conception can over time become the object of an overlapping consensus, providing stability for the right reasons. But it seems to me that in the modern world the ideas of human rights are by now so deeply rooted and so widespread that it is not possible to say of any nation that it cannot achieve such a consensus over time. Nor it seems to me, is it possible to affirm with confidence that a nation such as our own cannot move in the opposite direction. Indeed, on many of the issues of concern to Rawls, the United States has been moving further and further away from anything like consensus. So I am inclined to say that the elastic requirement of hope-for-consensus that Rawls introduces is good enough for any nation living under modern conditions in a world characterized by a world culture of human rights. People need only draw on the ideas inherent in that world culture, whether or not their own nation currently exhibits the structure of a constitutional liberal democracy. The reader of Rawls who hopes for a world in which an increasing number of nations will have a stable overlapping consensus of the type he envisages may cautiously extend Rawls’s conception without violating the deep motivations of his entire project. As for a transnational overlapping consensus, I believe one to be possible for the same reasons I have just mentioned: in today’s world there is widespread agreement about the importance of a long list of human rights, including social and economic rights, and about associated ideas of human dignity and equality. (Thus I also think that The Law of Peoples is too cautious when it holds that only a very few urgent human rights can be transnationally justified.) International agreements that realize these ideas have in fact been the object of an overlapping consensus ever since the Universal Declaration. (The philosopher Jacques Maritain, one of the primary architects of the Universal Declaration, expressed the theoretical backdrop of this agreement in terms of ideas that strongly resemble the ideas of political liberalism: he insisted that people who differ in their “theoretical conceptions” could agree in a practical commitment to human rights.) The extent and detail of such agreements is growing.

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Unless we support the creation of a world state, as I do not, the international overlapping consensus will be different in kind from the domestic consensuses: it will not be consensus concerning a basic institutional structure. Although the global consensus may certainly contain some global institutions, such as the World Court, global labor standards, agencies of the United Nations, and international agreements in areas such as trade and the environment, these are likely to remain decentralized, if national sovereignty continues to be respected, as I believe it should be. Thus the consensus will concern political principles that demand realization, above all, in each nation’s modification of its own domestic political structure, including its structure of foreign aid; no doubt the political principles will also require at least some transnational institutions, such as the World Court, global labor standards, agencies of the United Nations, and so forth. The creation of an international overlapping consensus around ideas of reciprocity and mutual respect is the most urgent task for the world community in our century. It must be undertaken if these values are to survive and prevail in a world increasingly under threat from sectarianism and intolerance of various kinds. The idea of respect is not especially Western; the so-called West has a lot to learn about it from other political cultures of the world, such as those of India and South Africa. It is a noble human idea. If we are to live in a world in which human beings do not dominate one another but live on fair terms of cooperation, the ideas John Rawls elaborated in Political Liberalism must be realized in political principles in nations around the world and in the structure of the increasingly complex relations that obtain among them. Fortunately, Rawls’s own modesty concerning the potential applicability of his ideas was misplaced. They can help us solve our world’s most pressing problems, insofar as any ideas can.

notes This introduction was originally commissioned for a new edition of Political Liberalism by Columbia University Press. Subsequent discussions led to the decision to separate it, making it the introduction, instead, to a volume of essays commissioned to honor the twentieth anniversary of the work. This occasioned significant delay since the essays needed to be written. I have brought the work up to date in terms of my own ideas, which have evolved in some respects, but I have not attempted to refer to all the works that have appeared in the interim

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1.

2.

3.

4.

5. 6.

7.

introduction because this is an introduction, not a bibliographical essay, and because most of the major writers on the work are represented in this volume and can speak for themselves. In particular, I have decided not to engage with Paul Weithman’s major book, Why Political Liberalism? On John Rawls’s Political Turn (New York: Oxford University Press, 2013), here because the book is so comprehensive and so significant that it would require engagement at every juncture, hence a different essay. I have elaborated the case for political liberalism against comprehensive or perfectionist liberalism in “Perfectionist Liberalism and Political Liberalism,” Philosophy and Public Affairs 39 (2011): 3–45, which goes into more detail on some of the issues discussed in this introduction. I am extremely grateful to Daniel Brudney, Charles Larmore, Henry S. Richardson, David Strauss, and Paul Weithman for their valuable comments on an earlier draft and, especially, to Chad Flanders, Daniel Groll, Jeffrey Israel, Jennifer Johnson, Ryan Long, and Micah Lott for their extremely careful attention to a draft and the hours of discussion they were willing to devote to it. Needless to say, none of these people can be presumed to agree with what I say here. Strictly speaking, what we should say is that these differences are intractable for practical purposes, for it might be part of someone’s comprehensive doctrine to hold that they are ultimately amenable to rational resolution. The political liberal should therefore not deny this. Rawls, as we shall see, often (not always: see section VI) uses the term “reasonable” in a special ethical sense, meaning “committed to fairness and reciprocity.” Here I use the term in its more familiar ordinary sense, to mean “using faculties of reason pretty well.” See Martha C. Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (Cambridge, Mass.: Harvard University Press, 2012), which discusses most of the examples in this paragraph. On India, see Martha C. Nussbaum, The Clash Within: Democracy, Religious Violence, and India’s Future (Cambridge, Mass.: Harvard University Press, 2007). I do not mean, of course, that the project is built on Kantian doctrine. Rawls increasingly stressed the independence of his project from all Kantian ideas (see section V). I only mean that a good way of thinking about his procedure is to think of the Kantian concept of practical hope, a concept that can easily be severed from Kant’s specific ethical doctrines. This hopeful approach may be contrasted, for example, with the reaction to world events by left-wing intellectuals such as Max Horkheimer and Theodor Adorno, who judge that the Holocaust should lead us to lose confidence in the basic liberal principles of the Enlightenment. Charles Larmore, “Public Reason,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 391. At TJ 586, Rawls does connect the ideas of inviolability, respect, and “human dignity,” stressing, however, that we need the political principles to give those indefinite ideas a determinate content. Should we think of equal respect for persons as a key idea in the political con-

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10.

11.

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ception (thinking, thus, of respect for persons under the description “citizen”), or should we construe respect as a moral notion that extends beyond and beneath the political? I am inclined to the former interpretation since it is no part of Rawls’s project to insist that all reasonable comprehensive doctrines must apply the notion of equal respect for persons to every relationship in human life—see section VI. But it is also clear that Rawls believes that our “considered judgments” include the idea of inviolability (the judgment that slavery is wrong was his example of a considered judgment in A Theory of Justice) and that, in this way, the political conception will be held up against that idea in the process of justification. The whole issue is thus very complicated and can generate arguments on both sides. Are there any such doctrines that can be presumed to be shared? Here we arrive at the difficult issue of science and its place in public reason: see section VI. Charles Larmore, Patterns of Moral Complexity (New York: Cambridge University Press, 1987), and The Morals of Modernity (New York: Cambridge University Press, 1996). Larmore uses the term “reasonable disagreement” rather than “reasonable pluralism,” but in all essential respects his view is the one that Rawls further elaborates. Particularly significant is his contrast between a political pluralism that avoids divisive metaphysical claims and respects all reasonable comprehensive doctrines and the metaphysical pluralism of Isaiah Berlin, which asserts that there is a plurality of irreconcilable views of value—something that few religious citizens could accept. See “The Idea of Public Reason Revisited” for Rawls’s major statement on the family, which firmly denies the private/public distinction but ultimately wavers between treating it as part of the basic structure and treating it as a voluntary institution: see my Women and Human Development (Cambridge: Cambridge University Press, 2000), chap. 4. Rawls lectured on the history of moral and political philosophy throughout his career: see John Rawls and Barbara Herman, Lectures on the History of Moral Philosophy (Cambridge, Mass.: Harvard University Press, 2000); and John Rawls and Samuel Freeman, Lectures on the History of Political Philosophy (Cambridge, Mass.: Harvard University Press, 2008). See also Reclaiming the History of Ethics: Essays for John Rawls, ed. Andrews Reath, Barbara Herman, and Christine Korsgaard (Cambridge: Cambridge University Press, 1997), in which a group of former students pay tribute to that focus; the introduction by Reath discusses Rawls’s approach in an illuminating way. In Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), I argue that Roger Williams is another very important part of this tradition and that Williams’s solution to the problem of pluralism significantly anticipates Rawls’s. Rawls did not teach Williams, not surprisingly, given the difficulty of obtaining his works until very recently; he probably knew them, but he did not discuss them in any writings known to me. See Martha Nussbaum, “Radical Evil in the Lockean State,” Journal of Moral Philosophy 3 (2006): 159–178; a longer version appears in Democracy and the

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15. 16. 17.

18. 19. 20.

21. 22.

23. 24.

25.

26.

27.

introduction New Religious Pluralism, ed. Thomas Banchoff (New York: Oxford University Press, 2007), 171–202. For discussion of differences between Locke and Roger Williams (Williams is more Rawlsian in key respects), see Nussbaum, Liberty of Conscience, chap. 2. Locke emphasizes, however, that Catholics and Muslims will be counted as good citizens only if they grant the civil sovereign’s full authority over all matters that Locke placed within the jurisdiction of the state, something that not all actual Catholics and Muslims were willing to grant. And like Roger Williams, who explicitly includes “antireligious” doctrines as well as the pagan practices of the Native Americans. See section V for his views about various religions in the contemporary United States. See PL 7 and 7n6, where, referring to the view that he has changed the egalitarian conception of A Theory of Justice, says, “I am not aware of any revisions that imply such a change and think the surmise has no basis.” See also xliiin8. Justice as Fairness: A Restatement (Cambridge, Mass.: Harvard University Press, 2001), published long after Political Liberalism and restating A Theory of Justice in most essentials, is further evidence of this fact. I address this question in “Political Objectivity,” New Literary History 32 (2001): 883–906. The material in this section is developed and further elaborated in my “Perfectionist Liberalism and Political Liberalism.” Burton Dreben, “On Rawls and Political Liberalism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 326. Susan Moller Okin, “Political Liberalism, Justice, and Gender,” Ethics 105 (1994): 23–43. Martha C. Nussbaum, “Rawls and Feminism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 488–520. Susan Moller Okin, “Gender, Justice, and Gender: An Unfinished Debate,” Fordham Law Review 72 (2004): 1537–1567. I am thinking of equal respect qua citizen; obviously matters become much more vexed if respect is taken to be a comprehensive moral notion extending beyond the political, as I have argued it should not be. Okin draws attention, for example, to the Orthodox Jewish prayer that requires men to thank God that they were not born as women. Now of course one may interpret this prayer in many ways, including ways that recognize women’s unequal burdens in childbirth, but on some interpretations there might indeed be a challenge to reasonableness that could be raised. Notice, however, that Rawls emphasizes that a doctrine is not “as such unreasonable” even if it leads to “an unreasonable [political] conclusion in one or even in several cases” (243n32). See my “Rawls and Feminism.”

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28. See, for example, Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge, Mass.: Harvard University Press, 1998). 29. Thus “matters of basic justice” are not coextensive with “matters regulating the basic structure.” 30. Compare Thom Brooks, “Reciprocity as Mutual Recognition,” The Good Society 21 (2012): 21–35. 31. In that sense, Rawls’s position is very different from the influential position of Robert Audi, in writings such as “The Separation of Church and State and the Obligations of Citizenship,” Philosophy and Public Affairs 18 (1989): 259–296. 32. Philip Quinn, “Political Liberalisms and Their Exclusions of the Religious,” in Religion and Contemporary Liberalism, ed. Paul Weithman (Notre Dame, Ind.: University of Notre Dame Press, 1997), 152. Quinn does not actually produce a case in which he thinks the “inclusive view” would give bad advice; he agrees with Rawls that it covers well the cases Rawls discusses. 33. Nicholas Wolterstorff, “Why We Should Reject What Liberalism Tells Us About Speaking and Acting in Public for Religious Reasons,” in Religion and Contemporary Liberalism, ed. Paul Weithman (Notre Dame, Ind.: University of Notre Dame Press, 1997), 174. Wolterstorff makes a number of other points, but since there are serious misreadings of Rawls in his paper, I shall not introduce them here. 34. Wolterstorff also questions the connection between respect and restraint, though perhaps he is focusing on cases that Rawls later calls “declaration” and “witnessing,” in which one is not asking the other party to accept one’s premises and to be persuaded but is rather just explaining the roots of one’s own view. 35. Paul Weithman, “Citizenship and Public Reason,” in Liberal Public Reason, Natural Law, and Morality, ed. A. Wolfe (Washington, D.C.: Georgetown University Press, 1999), 125–170. Weithman’s article postdates Rawls’s revision, and he is not fully satisfied by it, but the sort of concern he raises seems to have been on Rawls’s mind in producing the revision. See the related material in Paul Weithman, Religions and the Obligations of Citizenship (New York: Cambridge University Press, 2002), chap. 7. 36. Christopher J. Eberle, Religious Conviction in Liberal Politics (New York: Cambridge University Press, 2002). 37. See Weithman’s criticisms in the works cited in note 35, above. 38. That requirement may seem too strong to Eberle, but in the case where society is reasonably well ordered it is probably not too strong; Eberle’s critique gets too much mileage by its focus on the case of grave social injustice and disorder. 39. My book Political Emotions: Why Love Matters for Justice (Cambridge, Mass.: Harvard University Press, 2013) is an attempt to execute Rawls’s project in detail, though for societies aspiring to justice, with basically good political principles, not for societies already well ordered. I try to show that one may develop quite a detailed program of public emotion cultivation that still does not run afoul of the constraints of political liberalism. 40. See the discussion of the stability issue in Samuel Freeman, “Congruence and the

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41. 42.

43.

44.

45.

46. 47. 48. 49.

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introduction Good of Justice,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (New York: Cambridge University Press, 2003), 277–315. Freeman does not focus on the psychological claims of A Theory of Justice as the primary source of difficulty but, instead, finds difficulty in the overall Kantian argument for political stability. If I read Freeman correctly, he does not think that Rawls’s self-criticism rules out the sort of “reasonable political psychology” that I suggest here. See Nussbaum, The Clash Within. Rawls would, however, have to modify the strong contrast between public reason and “rhetoric or means of persuasion” (220); for quite a few reasons, I think he would be wise to do so. See Taylor Branch, Pillar of Fire: America in the King Years, 1963–65 (New York: Simon and Schuster, 1997), and discussion of King’s rhetoric in Alan Wolfe’s review of that book in the New York Times Book Review (January 18, 1998): 13. Martha C. Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (Princeton, N.J.: Princeton University Press, 2004); see also Martha C. Nussbaum, From Disgust to Humanity: Sexual Orientation and Constitutional Law (New York: Oxford University Press, 2010). I have made such an argument in Women and Human Development: The Capabilities Approach (New York: Cambridge University Press, 2000), though using my own political conception, which is focused on basic entitlements, and using an account of justification that sharply distinguishes justification from implementation. See also my Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, Mass.: Harvard University Press, 2006), chap. 5. In my introductory essay in Capabilities, Gender, Equality: Towards Fundamental Entitlements, ed. Flavio Comim and Martha C. Nussbaum (Cambridge: Cambridge University Press, 2014), I argue both that the Rawlsian idea of overlapping consensus is available to all modern nations and also that a global overlapping consensus is both conceptually and practically feasible. A publicity condition was, of course, an important element of the political conception from the beginning. See Dreben’s discussion of this point. See my piece after Rawls’s death, “Making Philosophy Matter to Politics,” New York Times (December 2, 2002). There are other problems with Rawls’s argument in that book, in particular his use of a “principle of toleration” to justify respecting regimes that grant unequal human rights fully equal moral status in the society of peoples: see my discussion in “Women and the Law of Peoples,” Politics, Philosophy, and Economics 1 (2002): 283–306. See Jacques Maritain, Man and the State (Chicago: University of Chicago Press, 1951); for a fine account of the framing, see Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2002). The framers included thinkers from China, Egypt, and India as well as Europe and the United States.

1 CHANGING CONSTRUCTIONS Onora O’Neill

CONTRACTS AND CONSTRUCTIONS The publication of John Rawls’s Political Liberalism surprised many of his admirers. It defended the same substantive principles of justice that Rawls had put forward in A Theory of Justice in 1971 but introduced major changes in the arguments by which they were supported. There is of course nothing wrong about offering distinct considerations in support of a single set of claims, yet it startled many readers to find Rawls proposing such large revisions in justification of substantive claims about justice that he had put forward for many years. Here I shall reflect on some of the innovations and the continuities in Political Liberalism that seem to me of most interest and address some of the problems that I think it leaves unresolved. From the time of writing A Theory of Justice, Rawls saw his work as continuing the social contract tradition while aiming to avoid its recurrent problems. In the preface to A Theory of Justice he writes that he aims to carry “to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau and Kant” (TJ viii) and in the opening paragraph that he aims to offer “a theory of justice that generalizes and carries to a higher level of abstraction the traditional conception of the social contract” (TJ 3). But whereas in A Theory of Justice Rawls

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had mainly described his work as contractarian, in Political Liberalism the metaphors of the social contract were mostly replaced by the idea that principles of justice can be constructed by reasonable procedures. The approach taken in Political Liberalism defends a form of political constructivism that seeks to identify principles of justice that would be reached by citizens who reasonably deliberate together, where reasonable citizens are seen as proposing and abiding by fair terms of social cooperation among equals (PL 93ff.). This specific focus on citizens and their deliberation had not been prominent in A Theory of Justice but can be seen as developing rather than replacing the earlier approach. A Theory of Justice proposes a theory of justice for a society that is thought of as “a more or less self-sufficient association of persons” (TJ 4) and “as a closed system isolated from other societies” (TJ 8). It was clear from its first pages that John Rawls had bracketed questions about international justice (TJ 8), despite assuming that there are many societies. Rereading his initial account of the context of justice with hindsight, it seems that many of the issues raised by his assumption that justice is internal to bounded societies, with their explicit inclusions and exclusions, were present and might have led to earlier questions about these aspects of his arguments. Yet widespread discussion of the implications of these inclusions and exclusions began only after the publication of Political Liberalism in 1993 and of The Law of Peoples in 1998. I shall argue that the assumption that we are dealing (at least in the first instance) with a bounded society of fellow citizens became more central to Rawls’s approaches to justifying principles of justice in the years between A Theory of Justice and Political Liberalism, despite the reality that globalization of many sorts was already underway, and that it was becoming less and less plausible to assume that issues of “domestic” justice could be handled in isolation. A focus on citizens and citizenship incorporates specific views of who counts in matters of justice and also of who does not count or counts for less. Claims about the scope of justice are fundamental to arguments about its demands, and Rawls’s views about who counts in various contexts are of central importance to understanding his changing position.

WHO COUNTS IN THE ORIGINAL POSITION? Rawls claimed in A Theory of Justice that his method is “more abstract” than that used in traditional social contract theories. In certain obvious

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ways this is true. For example, he does not assume that there was some historical moment at which the members of each society actually contracted or that (by some unknown means) their successors are now bound by the terms of that original contract. However, denying that the social contract was a historical event would hardly have been an innovation: the point had been familiar since the Enlightenment. But if the terms of the social contract are not historical but hypothetical, how and why do they bind actual persons who have never agreed to them? (See TJ 21). The more abstract approach that Rawls took in A Theory of Justice was intended to continue the social contract tradition by constructing an argument that provided reasons why members of any society of citizens should accept specific principles of justice, without drawing on (or inventing?) fictitious accounts of past occasions when they or some of their predecessors agreed to do so, but also without assuming that actual persons have accepted or must accept the terms of a hypothetical agreement or contract. The approach was to be philosophical and constructive rather than historical or quasi legal. Rawls claimed both in A Theory of Justice and later to show that members of any society had reason to accept certain principles of justice. He notes at the end of A Theory of Justice that “proof is not justification” since “proofs simply display logical relations between propositions” but justifications work only “once the starting points are mutually recognized” (TJ 581). The thought that principles of justice must be justified to those who will be bound by them is present throughout Rawls’s work on justice, but it takes different forms in A Theory of Justice and in his subsequent work. In A Theory of Justice the first step that Rawls takes is to distance reasonable agreement on principles of justice from ordinary, real-world agreements and disagreements by setting out a distinctively characterized Original Position. Agreements in ordinary life reflect differentials in power and knowledge, so they don’t offer a good basis for identifying principles of justice. Rawls seeks to correct for this problem by arguing that specific principles of justice would be chosen by rational agents in a hypothetical Original Position in which “no one knows his place in society, his class position, or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength and the like . . . their conceptions of the good or their special psychological propensities” (TJ 12). Despite Rawls’s description of this approach as “contractarian,” the term cannot be taken literally. Any claim that parties in the original position “agree” or “contract,” or even that they endorse a hypothetical

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“agreement” or “contract,” is highly metaphorical because there is nothing to differentiate one person from another in the Original Position. Rawls points out that “we can view the choice in the original position from the standpoint of one person selected at random” (TJ 139). No actual persons take part in or count in the Original Position. So this hypothetical “agreement” cannot be understood as a solution to disagreements of the sort that in actual situations might be resolved by bargaining or contracting, since by hypothesis nothing differentiates the parties. There is nothing that they need to agree on, or that they can agree on, since the terms of the hypothetical “contract” are reached simply by obliterating sources of disagreement. The Original Position provides a way of generating or identifying principles of justice that articulate an ideal of fairness, but it is not used to justify them to those who (supposedly) are to be bound by them.

WHO COUNTS IN REFLECTIVE EQUILIBRIUM? In A Theory of Justice Rawls deals with the limitations of the Original Position by embedding it in a conception of Reflective Equilibrium that specifically addresses questions of justification to actual people. The Original Position is a device for generating tentative principles of justice, but their justification to “us,” who are to live by or under them, is not that they would be chosen in a situation that we arguably should, but in fact may not, regard as fair, but that they are in reflective equilibrium with “our” best considered judgments about justice. “We” confirm the claim that the principles hypothetically agreed in the Original Position are principles of justice because they are (supposedly) “the same judgments about the basic structure of society that we now make intuitively and in which we have the greatest confidence” (TJ 19, cf. 579). Reflective Equilibrium rather than the Original Position is Rawls’s fundamental strategy of justification in A Theory of Justice: By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments and conforming them to principle, I assume that eventually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. This state of affairs I refer to as reflective equilibrium. (TJ 20)

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So justification in the end is not to be hypothetical, and we should (as Rawls was later to put it) view the Original Position merely as a “device of representation” (PL 24ff.) or as an “artifice of reason” (PL 75). This awareness of the limitations of the Original Position was something Rawls held to throughout his discussion of justification in A Theory of Justice, where he notes that “Moral philosophy is Socratic: we may want to change our present considered judgments once their regulative principles are brought to light” (TJ 49, see also 578). The deep strategy of A Theory of Justice is coherentist, and the device of the Original Position is used to fix the content rather than the justification of principles of justice. However, subordinating the Original Position to Reflective Equilibrium for purposes of justification comes at a price. This is not because coherentist justifications are invariably problematic. Many of Rawls’s colleagues and contemporaries used coherentist strategies of justification for a variety of purposes. Chomsky looked for coherence between his proposed deep principles of grammar and intuitive judgments of grammaticalness made by native speakers (cf. TJ 47); Quine argued in many works that justification cannot be linear or foundationalist but must aim to show coherence between a plurality of claims. However, introducing coherentist justificatory strategies unavoidably raises questions of scope: whose considered judgments are to be brought into reflective equilibrium with principles hypothetically generated by the device of the Original Position? Who exactly counts in Reflective Equilibrium? In A Theory of Justice Rawls left his answer to this question open: he appeals to “our” considered judgments but leaves it unclear whom he has in mind. In later works, including “Justice as Fairness: Political not Metaphysical” and Political Liberalism, he says more about who counts for justification.

WHO COUNTS IN POLITICAL LIBERALISM? The view of justification that John Rawls introduced in “Justice as Fairness: Political not Metaphysical” and developed in Political Liberalism is specifically political and appeals to a distinctive conception of public reason. As Rawls argued from the mid-1980s onward, when it comes to justification, citizens count, and noncitizens do not. He summarizes his revised position in the claim that Public reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the equal status of citizenship  .  .  . [it is] is

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This conception of public reasoning takes specific, distinctive, and interconnected views of the context, the subject matter, and the procedures of public reasoning. I shall discuss each in turn.

The Context and Audiences of Public Reasoning The context and audience of public reason, as understood in Political Liberalism, is once again a society conceived of as one among many. However, the societies in which such reasoning is seen as possible are now explicitly confined to bounded, liberal, and democratic political societies, each conceived of as a “complete and closed social system . . . [where] entry into it is only by birth and exit from it is only by death” (PL 40–41). These strikingly strong—and markedly unrealistic—restrictions on the context of public reasoning raise several problems, in particular because they ignore reasoning undertaken in nondemocratic societies and reasoning that crosses the borders between different societies. Both of these themes gained some importance in Rawls’s later work, but both were marginalized in Political Liberalism, which is entirely clear about who counts for purposes of political justification: fellow citizens count, and others do not.

The Nature and Content of Public Reasoning The context of public reason that Rawls assumes in Political Liberalism has decisive implications for his claims about its nature and content. The thought that public reasoning takes place among fellow citizens in bounded societies is fruitful because those citizens can be taken to share certain fundamental commitments. Their shared civic commitments to liberalism, to democracy, and to the continued existence of their bounded society provide a basis for debating or justifying its specific political arrangements.

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Yet the very fact that citizens are assumed to share these commitments may also hamper the justification of fundamental political arrangements. If commitments to liberalism, to democracy, and to the continued existence of a bounded society are taken as given, the answers to certain fundamental questions about justice, such the justice of secession or annexation, or the justice of liberalism or democracy, are prejudged. Even coherentist justifications must do more than reiterate commitments. The thought that public reasoning can take place only among fellow citizens may seem inadequate because it is excludes reasoning that crosses boundaries or engages with those who are not fellow citizens. It seems as if Rawls assumed more than is advisable if fundamental political arrangements are to be justified but also less than is needed for justifying political arrangements in a globalizing world. However, Rawls’s discussions of the nature and content of public reasoning in Political Liberalism do not focus on the implications of assuming political boundaries but on the importance of a quite different boundary between political and nonpolitical questions, in particular religious questions. At the end of “The Idea of Public Reason Revisited” he wrote: “Throughout, I have been concerned with a torturing question in the contemporary world, namely: Can democracy and comprehensive doctrines, religious or non-religious be compatible? And if so how?” (CP 611). Rawls was more worried by the threat to liberal democratic societies that can arise from within, when religious and cultural views threaten to eclipse the public domain, than he was by questions about the injustice created by external boundaries and the exclusions they maintain. He concludes that public reasoning among fellow citizens cannot resolve all questions on which they may disagree but only those on which their fundamental political commitments bear. Citizens in pluralistic, liberal democratic societies may hold a great variety of religious, ethical, and social views that remain impervious to processes of public reasoning. Consequently, persisting pluralism of outlooks and ideologies within each society is a natural outcome of the free public use of reason. In Political Liberalism Rawls therefore explicitly sets aside aspirations to justify any comprehensive moral position in favor of a strictly political view of what can be justified by public reason. Consequently, Political Liberalism is less ambitious about the limits of justification than A Theory of Justice had been. Rawls now maintains that public reasoning can justify no more than political liberalism and takes no position on broader questions about the good for man.

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Rawls did not think that these limitations on the subject matter of public reasoning meant that nothing reasoned could be said about morality or religion but only that neither was a matter for public reasoning. He takes it that other types of reasoning assume different contexts and concludes that “Not all reasons are public reasons, as there are the nonpublic reasons of Churches and universities and of many other associations in society” (PL 213, cf. 220–222). A natural way to read his discussions of nonpublic reasoning is to accept that reasoning that is addressed only to limited audiences can, perhaps must, reason within frameworks that those audiences understand and accept at least in part (for example, those assumed by specific ideological, moral, theological, or nationalist doctrines), which others may not accept, indeed may not even understand. Nonpublic reasoning, on this account, is not unreasoned, but it is unfit to persuade the public at large, many of whom will (at best) see any justifications it offers as conditional on assumptions they reject or find incomprehensible.

Processes of Public Reasoning However, the most interesting aspect of the revised justification of principles of justice offered in Political Liberalism is its explicit appeal to processes of public reason. Already in “Justice as Fairness: Political not Metaphysical” Rawls had argued that justifications could appeal to ideals that are constitutive of the identities of citizens of liberal societies. In Political Liberalism he lays less emphasis on citizens’ ideals and more on their being reasonable in ways that go beyond rationality. In A Theory of Justice he had relied on narrower conceptions of reason, seeing choice and action as rational if they take optimal, or at least adequate, means to preferred or chosen ends. He then used the device of the Original Position to deflect the self-interest that rational choice would otherwise ratify, by ensuring that principles that are blind to individuals’ preferences and interests would be selected. In Political Liberalism Rawls takes quite a different approach to reason and relies on a substantive conception of the reasonable: “Persons are reasonable [when] they are ready to propose principles and standards as fair terms of cooperation and to abide by them willingly, given the assurance that others will likewise do so” (PL 49). Reasonable persons seek to cooperate fairly; the merely rational pursue their own interests, often at others’ expense (PL

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51). This conception of the reasonable provides a basis for justification to others, and in particular a basis for justification within the context of common citizenship. Rawls summarizes this thought by saying that “the reasonable, in contrast with the rational, addresses the public world of others” (PL 62, cf. 53). Like some other contemporary proponents of conceptions of public reason, Rawls says more about his conception of the public than about his conception of reason. However, he does not see public reason merely as debate and discussion—discourse—that takes place between and among the members of the public, variously conceived, hence in the public sphere. Nevertheless, his focus is less on the distinctive features of various conceptions of reason than on the relations between the participants among whom reasoning and interaction takes place. This conception of reasonableness as fairness or reciprocity among citizens offers a broader conception of public reason as the basis for justifying principles of justice. It leads Rawls to substantive conclusions that reflect citizens’ shared political allegiance and their common liberal democratic culture. He concludes that “public reason is characteristic of a democratic people: it is the reason of its citizens, of those sharing the status of equal citizenship” (PL 213), that “Justice as fairness is a political conception in part because it starts from within a certain political tradition” (PL 225), and that we look “to our public political culture . . . as the shared fund of implicitly recognized basic ideas and principles” (PL 228).

PUBLIC REASON: FORM AND SCOPE Other contemporary accounts of public reasoning—notably that proposed by Jürgen Habermas—focus less on conceptions of reason and more on the public among whom reasoning, generally or conventionally conceived, takes place. Some see public reasoning simply as discourse, debate, or discussion that takes place between and among the members of the public, variously conceived, hence in the “public sphere.” Although Rawls insists that he is “concerned with reason not simply with discourse” (PL 53), he too says more about the context than about the processes of public reasoning, and he increasingly emphasized its geographical bounds, political context, and close links with democracy. Toward the end of his life, in the introductory words of “The Idea of Public Reason Revisited,” he wrote, “The idea of public reason, as I understand it, belongs to a conception of a

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well-ordered constitutional democratic society. The form and content of this reason . . . are part of the idea of democracy itself (CP 573). We may seem to be up against an impassable barrier. Normative content cannot be derived from nothing, but if it is derived from the norms that are taken to be shared by fellow citizens in liberal democracies, then justification will be relativized to those norms. On the other hand, if it wholly abstracts from actually accepted norms and does not build on any determinate content, will it be possible to establish any principles of justice? One option that seems to me worth exploring would be to drop restrictions and exclusions such as those introduced by assuming a bounded, liberal, and democratic society. Doing this would have two advantages. In the first place, it might allow something to be said about the justice of specific institutional arrangements, including boundaries and forms of liberalism and democracy, since they would not be presupposed. In the second place, it would answer the concern that starting with bounded societies, liberalism and democracy assumes that justice to or among outsiders is not an issue. However, a conception of public reasoning that is shorn of the constraints created by assuming boundaries, liberalism, and democracy may be too weak to justify any determinate conception of justice. Perhaps any “conversation of mankind” that does not assume a certain amount of institutional structure and ideological content—such as boundaries, liberalism, and democracy—will degenerate into a babble of voices. The only way to find out whether a more inclusive conception of public reasoning is fruitful is to suggest how it might be constructed and used to justify principles of justice. In normative discussion and (attempted) justification we propose and recommend claims and norms to others who may in turn accept or query, amend or reject those claims and norms. Communication and justification are interactive. Speakers have to assume some audience, tailor their speech acts to be intelligible to that audience, and enable their audience to assess their claims and proposals. Audiences have to aim to grasp what speakers communicate, which they may accept or reject, query or revise. All communication, including any justification of norms, is intrinsically relational and will fail if the necessary conditions for successful communication are not met. However, this does not mean that it has to be restricted to communication among fellow citizens. The most obvious and elementary of those conditions, which is as relevant to cognitive as to practical norms, is that speakers must seek to make their proposals intelligible to and assessable by those to whom they

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are made and that hearers must seek to understand and assess others’ proposals. I do not justify beliefs or proposals for action to others unless I take steps to ensure that my audiences can understand what I say and grasp what I do in saying it. (Speakers and hearers may of course fail to communicate, but I leave that case aside.) In a pluralistic world, these elementary requirements for successful communication can be exacting. Not only must interlocutors find at least some elements of common language in the obvious, linguistic sense. They must also take steps to enable their intended audiences to follow, grasp, and assess their claims and proposals as well as seek to follow, grasp, and assess others’ claims and proposals. Reciprocal respect for the norms that permit intelligible and assessable communication is an indispensable success condition for communicative action and so also for justification. However, satisfying requirements for intelligible and assessable communication will not by itself justify principles of justice. As novelists and social anthropologists repeatedly show, we can understand and assess countless norms that we find irrelevant or trivial, alien or abhorrent, or incompatible with other norms we take seriously. If we are to identify norms that bear on justice, meeting at least minimal conditions for communication may be necessary but is seemingly is not enough. One thought that may seem tempting at this point is that if we are to justify principles of justice for a globalizing but pluralistic world, they must be universal norms that set out universal entitlements or requirements, such as those found in Declarations and Conventions of Human Rights—or for that matter in the less popular genre of Declarations of Human Duties. However, the thought that norms must be universal can mean several things, and some interpretations make it a less weighty matter than is often supposed. A norm, rule, or standard is universal in form if it prescribes for all cases falling under whatever agent description it assumes or incorporates, that is, if (to use a Kantian turn of phrase) it is lawlike. However, many cognitive and practical norms of restricted scope or questionable justification (or both) are lawlike in form. Both the norm bank tellers should assume that customers are innumerate and the norm failing students should miss all lectures are of universal form, and each addresses a restricted audience, but neither is obviously justifiable—although both are quite often adopted. Other cognitive and practical norms of universal form have more to be said for them. The norm avoid inconsistent beliefs and the norm choose some effective means to your ends are of universal

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form and address an unrestricted audience; they may well be justifiable. But clearly, we cannot justify norms of any sort merely by showing that they are intelligible and lawlike in form. So we should not be surprised that norms and principles with lawlike form that some think morally or politically important often conflict with other norms and principles with lawlike form others think morally or politically important. That, after all, is the predicament of pluralism that Rawls addresses in Political Liberalism. Nor should we be surprised that some norms of universal form prescribe morally abhorrent standards or requirements, or are relevant only to specific and restricted groups, or conflict with other seemingly important norms. The pluralism to which so much contemporary writing in moral and political philosophy, including Political Liberalism, responds is a genuine predicament that arises from the reality that individuals and groups who live by differing sets of norms, many of them of universal form, share the world. By itself, a demand that norms be universal in form cannot resolve disagreements about which norms should counts as principles of justice. However, while universal form by itself is a less weighty matter than is often imagined, combining universal form with universal scope may provide a basis for a more useful conception of public reason that is relevant to identifying proposals and principles that can be communicated and potentially justified to an unrestricted audience. We have seen that Rawls’s justification of principles of justice in Political Liberalism in fact depends markedly on his assumptions about the scope of justice. Contemporary discussions often assume that the content of principles of justice can be settled independently of questions about their scope. So we tell ourselves encouraging stories about long-accepted norms and principles whose scope was initially seen as narrow but that were later progressively widened: the extension of the franchise and full citizenship from a propertied elite to all men and then to all women; the extension of full civil rights to groups previously marginalized on grounds of race or caste; the increasing inclusion and protection of children, the disabled, immigrants, homosexuals, and members of many other groups that used to be relegated to second-class status. However, the claim that scope is a secondary matter and that we can generally justify principles of justice and subsequently adjust their scope as an afterthought or corrective may be mistaken. Scope often also matters for justification. So it is reasonable to ask whether a conception of public reason as reasoning designed to reach an unrestricted audience could justify at least

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some politically (and perhaps ethically) important norms. On the surface, things do not look particularly promising. We cannot reasonably expect that everybody will be able to act on any proposed norm or principle: the defects of this proposal have been exhaustively and tediously documented. A demand that norms or principles be universally enactable (at all times? in all contexts?) is a demand too far. However, the point of seeking to justify principles or norms to an unrestricted audience is not in the first place that all should promptly enact these norms but to ensure that all can understand them, and assess them, and see their point and perhaps more, even if they find and foresee little current prospect of living by them. Yet this may still seem to offer too weak a criterion for demarcating morally and politically significant norms. If the criterion for morally or politically significant norms is that they could be adopted all, how can we distinguish between norms that can be followed by all simply because they prescribe trivially permissible action and those that prescribe action that is not trivially or merely permissible but required? It seems that this more Kantian aim for justification may not fail because it assumes too readily that justice presupposes specific institutions but because it assumes and provides too little to identify or justify any politically (let alone morally) important norms. However, although the combination of lawlike form and universal scope is met by many trivial norms and principles, it is also one that at least some seriously reprehensible laws and principles cannot meet. This suggests that a fruitful (and more Kantian) use of this approach might be indirect. It might ask whether certain principles should be rejected because they are not justifiable. If we ask not which norms or principles can be universally adopted but which cannot be universally adopted, a more interesting picture emerges. There are many practical principles that can readily be adopted by some agents but that cannot be adopted by all agents and so cannot be coherently proposed to or justified to an unrestricted audience. Typically such principles cannot be universally adopted because their adoption even by some, let alone by all, agents would be expressed and reflected in action that would disable or prevent at least some others from like action. Principles of violence or coercion, of manipulation or deception, and many others cannot coherently be proposed to or justified to all others since their adoption will be expressed and reflected in at least some action

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on these principles, and even occasional enactment by some will preclude at least some others from taking action on those very principles. Combining demands for lawlike form and universal scope leads to nontrivial conclusions. Broadly speaking, norms whose successful enactment would make at least some others into victims who cannot act on like norms cannot coherently be put forward as norms for all or justified to all. This suggests that the principles we can initially justify to all might be very general principles of respecting or protecting others’ agency. Such principles are a far cry from principles of liberalism or democracy or the principles of other specific institutional arrangements.

PRINCIPLES AND INSTITUTIONS Political Liberalism builds certain institutional assumptions into the very core of its justification of principles of justice. Boundaries and liberal democratic citizenship are there from the start and are presupposed by the proposed justification of principles of justice. The institutional presuppositions are in some tension with the aims of the social contract tradition, which has generally sought to justify rather than to assume institutions of such political importance. There is, I think, a lot to be said for trying to justify rather than to presuppose institutional arrangements, including fundamental political arrangements. A political philosophy that does not build on premature or unjustified institutional assumptions leaves scope for considering the full range of political problems that any account of justice should address. The most basic of political problems is surely disorder and the threat of disorder: those who live with anarchy and the threat of anarchy cannot aspire to any more ambitious conception of justice. But order is not enough. Even when order has emerged, it may be harsh and arbitrary, and those who live with it may conclude that the rule of law is a further fundamental requirement for any sustainable civic life or constitutional order. The more specific concerns of political liberalism, including secure boundaries, individual protection and freedom (and perhaps further liberal rights), and self-government (and perhaps democratic process) can be addressed only in societies that enjoy both order and the rule of law. This, it seems to me, shows why principles of justice for a globalizing world cannot be justified by the approach that Rawls takes in Political Liberalism. It is a long march

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through the arguments from a less civic conception of public reason than the one Rawls deploys to any account of justified political institutions, but I think there may be good reasons for taking the long route and beginning an account of justice without assuming that boundaries, liberalism, and democracy are uncontroversial presuppositions of any just political order and so need no justification.

notes 1. 2.

3.

4.

5. 6.

7. 8.

9. 10.

11. 12.

See also “Justice as fairness is . . . a contract theory” (TJ 16) and “there are many different contract theories. Justice as fairness is but one of these” (TJ 121). This section draws on some of the arguments I used in discussing Rawls’s reliance on abstraction and idealization in “The Method of A Theory of Justice,” in John Rawls: Eine Theorie der Gerechtigkeit, ed. Otfried Höffe (Berlin: Akademie Verlag, 1998), 27–43. The argument depends in part on showing that the two principles of justice are “the unique solution to the problem set by the original position” (TJ 119). This claim has been repeatedly queried, but I shall not discuss it here. In these arguments he takes it that they are rational “in the narrow sense, standard in economic theory, of taking the most effective means to given ends” but does not introduce any wider conception of the reasonable. See TJ 14, 143. Cf. John Rawls, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14 (1985): 223–251; reprinted in CP. Some of the arguments in this section draw on my “Political Liberalism and Public Reason: A Critical Notice of John Rawls’ Political Liberalism,” Philosophical Review 106 (1998): 411–428. Also see “The Idea of Public Reason Revisited,” in CP (573–615). See also PL 68, 301. Rawls denied that this bounded society is a state. However, the fact that it has and defends its boundaries suggests that it is close to being a state. See PL xv, and “The Idea of Public Reason Revisited.” For more extensive comparisons with Habermas’s conception of public reason and with their shared Kantian ancestor, see Onora O’Neill, “Autonomy and Public Reason in Kant,” in Reason, Value, and Respect: Kantian Themes from the Philosophy of Thomas E. Hill Jr., ed. Mark Timmons and Robert Johnson (Oxford: Oxford University Press, in press). Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry Into a Category of Bourgeois Society [1962] (Cambridge: Polity, 1989). Kant pointed out the limitations of appeals to lawlike form on its own when he distinguished heteronomous from autonomous principles: both are lawlike in form, but he thinks that only the latter can be fully justified. On Kant’s account,

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the formal structure of norms or principles is not enough to determine which norms are of cognitive or practical importance. 13. See Onora O’Neill, Towards Justice and Virtue: A Constructive Account of Practical Reasoning (Cambridge: Cambridge University Press, 1996), and Onora O’Neill, “Self-Legislation, Autonomy, and the Form of Law,” in Recht, Geschichte, Religion: Die Bedeutung Kants für die Gegenwart, ed. Herta Nagl-Dockeal and Rolf Langthaler (Berlin: Akademie Verlag, 2004), 13–26. 14. Kant explored this approach in his later writings, where he develops a conception of public reason that stresses not the context and conditions in which it is conducted but the norms that must be respected if communication is to reach a potentially unrestricted audience. As he sees it “private” uses of reason rely on assumptions that are peculiar to limited audiences while “public” uses of reason do not and so can be used in communication with, even justification to, “the world at large.”

2 LEGITIMACY AND THE PROJECT OF POLITICAL LIBERALISM Paul Weithman

In “Realism and Moralism in Political Theory,” Bernard Williams wrote that the John Rawls of Political Liberalism “wants to make a bigger gap than A Theory of Justice allowed between two different conceptions: that of a society in which power is rightfully exercised (a well-ordered society) and that of a society that meets liberals’ aspirations to social justice.” If we take the phrase “a society in which power is rightfully exercised” to mean “a society in which power is legitimately exercised,” then Williams’s remark suggests a reading of Political Liberalism that is influential and widely endorsed. Indeed, I believe that in some form, this reading is often taken for granted. I shall refer to the reading I have in mind as “the standard reading.” The standard reading proceeds in four steps. 1. First, it purports to explain Rawls’s political turn. According to the standard reading, after publication of A Theory of Justice, Rawls came to see that its arguments for the principles of justice rested upon Kantian claims that some members of the well-ordered society (hereafter, “the WOS”) could reasonably reject. Reasonably rejecting the arguments for the principles, they would reasonably reject the principles themselves.

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Rawls therefore recast justice as fairness as a political conception of justice, thereby weakening the premises on which his defense of the principles rested, so that the principles and their grounds would be acceptable to all reasonable members of a WOS. 2. Second, Rawls came to see that even after justice as fairness had been recast, it—and hence the two principles of justice—would not enjoy unanimous consent in the WOS. Instead, reasonable citizens of that society would adhere to a variety of liberal political conceptions of justice. 3. Third, Rawls continued to think that the demands of a WOS must be publicly justifiable by a principle or principles acceptable to all reasonable citizens. In A Theory of Justice, the two principles of justice were said to provide a “common standpoint” for imposing demands and adjudicating conflicting claims (TJ 4). Once Rawls realized that some citizens of the WOS would reasonably reject his two principles, he saw that he needed a weaker standard of public justification than he had defended in A Theory of Justice. In Political Liberalism, the liberal principle of legitimacy— rather than the two principles of justice—provides that standard. 4. Finally, because the principle of legitimacy replaces the principles of justice as the common standard of public justification, legitimacy rather than justice is the subject matter of Political Liberalism. As we shall see in the next section, the standard reading has much to be said for it. Moreover, by showing why Rawls opens the gap to which Williams refers, it helps explain the retreat from egalitarianism that some readers think they have detected in Political Liberalism. Despite the appeal of the standard reading, its central claims are as disturbing as they are striking. According to that reading, the Rawls of Political Liberalism does not just correct and reformulate justice as fairness. He reorients his thought around a political concept that had no explicit place in his earlier work. In doing so, he is said to take back one of his boldest and most attractive moral commitments. If a reading with these implications is to be accepted, it ought to be accepted only if very strong textual and philosophical grounds can be found in its favor and only after a thorough evaluation of interpretations that avoid them. I shall argue that the standard reading errs in a number of places. It goes wrong at the first step by misidentifying the problem that led Rawls to recast justice as fairness. In moving from the first step via the second to the third, it overlooks an important fact: while the Rawls of Political Liberalism did concede that members of the well-ordered society would

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endorse different conceptions of justice, he conceded it long after he began to recast justice as fairness. This fact is easy to overlook if we fail to distinguish as sharply as Rawls would between pluralism about the good, alleged at the first step, and disagreement about justice, alleged at the second. But if we overlook it, we will mistake the central project of Political Liberalism for a problem that attracted Rawls’s notice quite late in the execution of that project: a problem of showing stability in the face of likely differences about the right. A consequence of this mistake will be a misleading description of Political Liberalism—such as that offered at the fourth step of the standard reading. On my reading, Rawls recast justice as fairness because he thought A Theory of Justice failed to show that justice as fairness would be stable in a society characterized by reasonable pluralism about the good. To the extent that Political Liberalism has a single purpose, it is to correct that failure. The standard reading is right in claiming that Rawls introduced the principle of legitimacy to help correct it. As we shall see, the standard reading claims that when citizens recognize laws as legitimate, their recognition engages their sense of duty. That, it says, is how legitimacy contributes to stability and solves the problem with A Theory of Justice. I shall argue that while this is one of the ways legitimacy contributes to stability, we will miss Political Liberalism’s central project if we think it is the only way. For Political Liberalism’s discussion of legitimacy does not add anything significant to what A Theory of Justice had said about the duty of citizens in the WOS to obey the law. It recalls and labels what Rawls said about that duty in his earlier work and applies it to cases not unlike those he considered in A Theory of Justice. But if Political Liberalism’s treatment of legitimacy does not add to A Theory of Justice’s discussion of this important element of the right, it does allow Rawls to offer a fresh and important argument about citizens’ good. For showing that justice as fairness would be stable involves showing that citizens would regard doing their duty as part of their good. Rawls’s treatment of legitimacy in Political Liberalism helps him establish that conclusion on the basis of more realistic assumptions than he had used in A Theory of Justice. I shall defend this interpretation beginning in §4. I believe that it is important to see the project of Political Liberalism aright because I think that Rawls has much to teach us about stability and legitimacy. But I shall not draw out the implications of his account of legitimacy here. My aim is simply to recover the account so as to gain more accurate views of legitimacy’s role in Political Liberalism and of Political Liberalism’s

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central project. As we shall see, this requires a surprising amount of rational reconstruction since much of the work legitimacy does is compressed into Rawls’s discussion of a couple of difficult cases. Before I defend my own interpretation, I shall elaborate the standard reading. That reading is not, to my knowledge, explicitly laid out and defended in the literature on Political Liberalism. But many readers of that book have offered criticisms and interpretations that can plausibly be seen to stem from a single underlying reading of the book. In §1, I surface that interpretation and make good my claim about the pervasiveness of its hold by showing how it unites and explains some important commentary on Political Liberalism. Because of the influence of this reading, it merits careful attention. In §§2 and 3, I defend my claim that the reading goes wrong at each of the four steps laid out above. As we shall see at the end of §3, showing the problems with the standard reading does not just clear the way for a more faithful interpretation of Political Liberalism. It also brings to light a number of philosophical and textual puzzles about legitimacy that a correct reading must solve. In §§6 and 7, I show how the reading defended here addresses those puzzles.

§1. THE STANDARD READING I observed at the outset that the standard reading is suggested by a remark of Bernard Williams’s. Elements of the reading are laid out more expansively by other writers. I said that the first step of the standard reading is to explain Rawls’s political turn by pointing to the possibility that some members of the well-ordered society would reasonably reject Rawls’s two principles. Consider Burton Dreben’s description of the “essential flaw” Rawls saw in A Theory of Justice and the reason for his shift to political liberalism: The last third of the book A Theory of Justice deals with th[e] question of stability, or as Rawls comes to call it in much later writings “stability for the right reasons.” And the way he argues that the two principles of justice, which the first two-thirds of the book deals with and which are to govern the basic structure of society, are indeed stable . . . rests on showing that everyone will agree, or at least the vast majority of the society will agree, on these principles of justice. Now what Rawls began to see was that, under the very conditions that satisfy the principles of justice that he worked so hard to establish, reasonable and free and equal people

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will begin to differ, inevitably and properly so, on those very principles of justice. Hence, from his perspective, the theory of stability that he had set forth in the last third of the book contradicts the first two-thirds of the book. This leads to a recasting of what he became so world famous for.

This passage reaches a striking conclusion: Rawls recast justice as fairness because the first two-thirds of A Theory of Justice contradict the last third. Striking as it is, this conclusion echoes Rawls’s own claim that he took his political turn because “the account of stability in part III of Theory is not consistent with the view as a whole” (PL xvii–xviii). For present purposes, what is most interesting about the passage is what Dreben says about how the first two-thirds of A Theory of Justice contradict part III. He says the contradiction stems from the fact that members of the WOS would differ about the principles of justice and that their differences would be “inevitabl[e] and proper[].” Thus Dreben seems to think that some members would reasonably reject the principles and that the contradiction that stems from their doing so is what “leads to a recasting” of justice as fairness. Dreben does not say why members of a well-ordered society would “differ on [Rawls’s] principles.” It is natural to suppose that he thinks they would differ because some of them would reject Rawls’s arguments for the principles, including the argument from the original position that Rawls offers in “the first two-thirds of the book.” The question, then, is why Dreben thinks they would reject those arguments. I said earlier that according to the standard reading, some of the members of the WOS would reject them because those arguments rest on Kantian premises that some reasonable citizens would find objectionable. Dreben hints at that explanation, and Bruce Ackerman—whose writings express elements of the standard reading—offers an extended argument to that effect. I shall take Ackerman’s argument as an elaboration of the hint dropped by Dreben and hence as an explanation of the disagreement to which Dreben calls attention. If this is a fair reading of Dreben, then he quite clearly takes the first step of the standard reading. According to the second step, Rawls came to see that members of the WOS would disagree about justice as fairness even after it was recast as a political liberalism. About this step, Dreben is considerably less clear. Immediately before the passage quoted just above, he writes: The first book deals with justice, a much discussed topic; the second book deals with legitimacy, a topic that few contemporary philosophers in the

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legitimacy and the project of political liberalism liberal tradition have focused on. (It of course has been dealt with by various so-called political scientists.) The question of legitimacy—that is, under what conditions will someone properly accept a law as legitimate, even if he differs with it, even if he thinks it unjust—is a central question for present-day society. And that is what Rawls is really considering. It grows out of what he considers to be an essential flaw in the first book.

Dreben’s conjunction of the two quoted passages suggests that he moves directly from the first step of the standard reading to the third, which asserts that because of disagreements about justice in a wellordered society, legitimacy replaces justice as the standard of public justification. But clearly the first and second steps need to be distinguished since, once justice as fairness has been recast as a political liberalism, Rawls’s principles no longer depend upon Kantian premises. The reasons for the rejection of the principles asserted at the first step no longer obtain, and Dreben’s move to the third step is too quick. The second step is more explicitly taken by other commentators. Thus when David Reidy says that in a well-ordered society citizens would adhere to “any number of possible (generically liberal) reasonable conceptions of justice,” context suggests that he means they would adhere to any number of liberal political conceptions of justice. When Simon Cabulea May says that the Rawls of Political Liberalism “assumes the possibility of widespread disagreement about justice,” what he says later makes clear that he, too, is talking about disagreement over liberal political conceptions of justice. And when David Estlund says “it is impossible to deny that Rawls holds in PL that there are many political liberalisms, justice as fairness being but one,” he quite obviously means that Rawls thinks there are many political liberalisms among which citizens of a WOS would reasonably divide. But if Reidy, May, and Estlund all separate more sharply than Dreben does the claims that I have identified as the first and second steps of the standard reading, Reidy and May say things that make Dreben’s elision of the two steps understandable. Reidy says “freedom leads to reasonable disagreement over matters of religious, philosophical and moral doctrine, as well as over theories of justice.” As we saw, reasonable disagreement about comprehensive doctrines is what led to the possibility, asserted at the first step, that some citizens of the well-ordered society of A Theory of Justice would disagree with Rawls’s two principles as defended in that book. What I take Reidy to be suggesting is that the same dynamics that

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open that possibility would open the possibility, asserted at the second step, that citizens of the well-ordered society of Political Liberalism would dissent from justice as fairness when it is presented as a political liberalism. May seems to read Reidy this way and to accept his suggestion. If the disagreements about justice asserted at the first and second steps have a common cause, as Reidy and May seem to think, then it is more understandable that Dreben simply asserted that Rawls realized there would be disagreements about justice in the well-ordered society and moved from that assertion to the third step. I shall argue shortly that the assertion of a common cause of the two instances of disagreement is, at best, highly misleading. I have already noted that Dreben takes the third step of the standard reading. Reidy suggests a move from the second to the third step when he says, “No longer able reasonably to assume the sort of general consensus he thought likely to be ushered in by the institutional embodiment of his two principles, Rawls found issues of legitimacy increasingly central to his project.” In Estlund, the move from the second step to the third is especially clear. Dreben, Reidy, May, and Estlund all move from the third step of the standard reading to the fourth, asserting that as justice forms the subject matter of A Theory of Justice, so legitimacy forms the subject matter of Political Liberalism. Thus as we saw in the second passage I quoted from his essay, Dreben says that Rawls’s “first book deals with justice, a much discussed topic; the second book deals with legitimacy.” Reidy says that legitimacy is “center stage” in Political Liberalism, “pushed” there by the pluralism that he takes to explain the disagreement asserted at the second step and to necessitate the introduction of legitimacy at the third. May says that in moving from A Theory of Justice to Political Liberalism Rawls “shift[s] from the problem of distributive justice to the problem of political legitimacy.” Estlund says that legitimacy is what Political Liberalism is “primarily about.” Readers who take what I have identified as the third step of the standard reading differ about the reasons for taking it. These differences give rise to two variants of the standard reading. On one variant, which I shall call the “foundationalist variant,” a commitment to the public justifiability of basic political arrangements formed the foundation of Rawls’s thought, both early and late. In A Theory of Justice, he argued that a society could honor that commitment only if it conformed to the two principles of justice. Once he realized that the principles were too

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strong, he replaced them with the weaker principle of legitimacy, again to show what standard a society must meet if it is to honor that foundational commitment. This foundationalist variant has considerable appeal, for Rawls does seem to be fundamentally committed to public justifiability. Indeed, that commitment may seem to be what makes Rawls’s view paradigmatically liberal. Of course, fully to spell out this variant, we would have to know how the commitment to public justifiability is to be understood. The natural way to take the commitment is deontically, as expressing or stemming from a requirement. This is, I believe, the way Ronald Dworkin understood the commitment in an early and very influential essay on A Theory of Justice. If Rawls thinks the commitment is a requirement of political morality, then he must also think that the requirement can be represented as the object of a choice in the original position. But because the commitment says that principles governing the exercise of political power must be justifiable to persons as free and equal, the commitment seems to underlie the requirement that basic principles of political morality be chosen in the original position since the original position is used to identify principles that are justifiable to persons as free and equal. The foundationalist variant of the standard reading therefore seems to require that we read Rawls as arguing in a circle. And that is precisely how Charles Larmore interprets Rawls, in what I read as the clearest and most forceful defense of the variant. To rebut the foundationalist variant, it is necessary to spell out Rawls’s claim that justice as fairness is based on a set of “conceptions” or “ideals” rather than on a basic right or on a requirement of mutual justifiability. I have tried to do that elsewhere and shall not rehearse my interpretation here. For now, suffice it to say that since the foundationalist variant involves imputing a circularity to Rawls, it should be accepted only if no other reading of the texts is available. Because I believe another and a more defensible reading is available, I shall confine my attention to the other variant of the standard reading, which takes the third step for different reasons. That variant is suggested by Dreben. According to Dreben’s variant, Rawls thought that citizens of a wellordered society would feel duty-bound to honor their society’s demands only if they could see that those demands were justifiable by a common standard. Since a widespread and well-founded sense of duty is necessary for the right kind of stability, Rawls needed the principle of legitimacy to provide a common standard, elicit citizens’ sense of duty, and show

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how the WOS would be stabilized “for the right reasons.” If it is fair to impute the standard reading to Dreben at all, it is this variant that we have to impute to him. For the two extracts from his essay—taken together— make clear that he thinks the Rawls of Political Liberalism took up what he calls “the question of legitimacy” to show that a WOS would be stable. Dreben thought that citizens’ perception that laws are legitimate helps stabilize the WOS because their perception of legitimacy engages their sense of duty so that they see they are “politically-morally bound to obey the law.” I said earlier that the standard reading has much to be said for it. I shall not detail all the textual support that could be marshaled for the standard reading or that is marshaled for the interpretive comments about Political Liberalism that I have said are underlain by that reading. I shall simply note some especially important passages in Political Liberalism that seem to support the first three steps of the standard reading. If those steps are sound, then the conclusion expressed at the fourth step—about the subject matter of Political Liberalism—is a natural conclusion to draw. Rawls seems to say that he recast justice as fairness for just the reason alleged at the first step, for when he explains his transition to political liberalism, he says that in A Theory of Justice, he had unrealistically assumed that all the members of the WOS would “endorse [justice as fairness] on the basis of what I now call a comprehensive philosophical doctrine” (PL xviii). Context makes clear that Rawls means he had assumed they would all endorse it on the basis of the same comprehensive doctrine. This text therefore lends some support to the standard reading’s contention that Rawls recast justice as fairness because he had assumed members of the WOS would all endorse the principles of justice on the basis of a shared comprehensive Kantianism. Rawls undoubtedly allows what is alleged at the second step: that members of the WOS would disagree about justice as fairness even after it is recast as a political liberalism. In “Idea of an Overlapping Consensus,” he concedes that the focus of an overlapping consensus is likely to be not a single conception of justice or a single set of principles but “a class of liberal conceptions that vary within a certain more or less narrow range” (PL 164). In the introduction to the paperback edition, he grants that citizens of a well-ordered society might well endorse different liberal political conceptions of justice (PL xlvi). If we accept Dreben’s explanation of the third step, then there is textual support for that step as well. For Rawls seems to say that his central concern in Political Liberalism is just the concern that Dreben says led him to take

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the third step and introduce the principle of legitimacy—namely, the concern with stability (PL xvii). The standard reading also seems to derive support from its ability to explain a change in Rawls’s view that many readers have thought accompanied the recasting of justice as fairness. To see this, recall Williams’s remark that in Political Liberalism, Rawls “wants to make a bigger gap than TJ allowed between two different conceptions: that of a society in which power is rightfully exercised (a well-ordered society), and that of a society that meets liberals’ aspirations to social justice.” Rawls is said to have distinguished the two conceptions by shifting to a weaker standard of public justification and by characterizing a well-ordered society as a society in which power is legitimately exercised. According to the standard reading, Rawls distinguished those conceptions to solve the problem of stability. But the cost of distinguishing the conceptions and solving the problem was to open a gap between the two and to allow that the WOS of Political Liberalism need not meet “liberals’ aspirations to social justice.” More specifically, it is said, the WOS of Political Liberalism need not satisfy the difference principle, which is the more controversial of Rawls’s two principles. The retreat from the difference principle that many readers think they have detected in Political Liberalism is just what we would expect if we accept the standard reading’s account of why Rawls recast justice as fairness and shifted his focus from justice to legitimacy. As if to confirm the naturalness of the expectation, some critics have alleged that Rawls retreated precisely because the difference principle would be controversial under conditions of pluralism and because controversy over fundamental principles threatens stability. Simone Chambers sums up an argument to this effect by saying that “Rawls’s deep commitment to equality is in tension with his equally deep and democratic commitment to consensus as the starting point for justice.” The tension in Rawls’s view had to be resolved, she says, and “the search for stability led Rawls to push controversial principles concerning social justice into the background and to place more widely accepted views concerning rights and freedoms into the foreground.” Thus the standard reading seems to have not only textual support but enough explanatory power both to unify interpretive remarks by a number of careful readers of Political Liberalism and to account for what some of them take to be a disturbing retrenchment in Rawls’s later thought. In the next two sections, I shall argue that despite its power, the interpretation is

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mistaken. Another reading of Political Liberalism is called for that assigns the liberal principle of legitimacy a different role.

§2. DIFFICULTIES WITH THE STANDARD READING: THE FIRST THREE STEPS Let us start with the question of whether the Rawls of Political Liberalism did indeed retreat from his earlier commitment to economic egalitarianism. We can begin to consider that question by looking into the first step of the standard reading. As I indicated in the introduction, I believe that reading goes wrong at that step by misidentifying Rawls’s reasons for recasting justice as fairness. I cannot definitively establish this claim here; I shall simply point to a serious difficulty with the standard reading of Rawls’s political turn. As I mentioned earlier, Rawls implies that in A Theory of Justice he had unrealistically assumed that all members of the well-ordered society would accept the same comprehensive view and would endorse justice as fairness on that basis (PL xvi–xvii). To see why he recast justice as fairness, we have to see where he relied on that assumption. According to the standard reading, the arguments for the principles of justice in the first part of A Theory of Justice depend upon distinctively Kantian premises. Rawls relied on the unrealistic assumption when he assumed that everyone in the WOS would endorse his principles on the basis of arguments that depend on those premises. The problem with this reading is that comprehensive views— whether full or partial—are views of the good. And so what A Theory of Justice must have unrealistically assumed is that all members of the wellordered society would have the same—possibly partial—conception of the good. Rawls does not introduce his account of goodness until the third part of that book, and, with the exception of claims about primary goods, premises about the good do not enter into the argument for the principles. It is therefore hard to see where in that argument Rawls could have relied on the unrealistic assumption or how the assumption would have helped establish the principles of justice. Where Rawls seems much more likely to have relied on the assumption is in the third part of A Theory of Justice. There he tries to show— crudely put—that one of the reasons justice as fairness would be stable is that its members would all judge that it is good to be just. Showing this

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would be much easier if Rawls could assume that the institutions of the well-ordered society would encourage some convergence in everyone’s conception of the good—that is, if they encouraged everyone to endorse the same partial conception of the good. As I shall indicate at the beginning of the next section, this is the assumption Rawls relied on. Coming to see how unrealistic the assumption was, Rawls recast justice as fairness to take fuller account of pluralism about the good than he had in A Theory of Justice and to fix the problem he found in the third part of that book. If my reading is correct, then Rawls’s reasons for presenting justice as fairness as a political liberalism is to show that justice as fairness— understood as including both of Rawls’s two principles—would be stable for the right reasons. Even if he later became interested in how stability bears on societies that do not meet A Theory of Justice’s “aspirations to social justice,” as the standard reading says, showing the stability of justice as fairness as formulated in that earlier book was Rawls’s original reason for recasting it as a political liberalism. In that case, then not only is the standard reading wrong at the first step about what motivated Rawls’s political turn, but that turn cannot constitute a retreat from the difference principle. Even if we grant proponents of the standard reading their first step, the reading may seem to face a serious textual difficulty. As I mentioned in the introduction, Rawls came to the realization referred to in the second step—the realization that justice as fairness would be the object of some disagreement even after it was recast as a political liberalism—only after the project of recasting it was well under way. Thus Rawls does not say anything about such disagreements in “Justice as Fairness: Political not Metaphysical,” the essay in which he began to present justice as fairness as a political conception. His remark about the likely focus of an overlapping consensus, which was one of two passages that I said supports the second step, occurs in the version of “Overlapping Consensus” that is included in Political Liberalism. There is no comparable passage in the original version of that essay, which appeared some years before. The other passage that I said supports the second step of the standard reading is a similar concession from the introduction to the paperback edition. But in the revised Dewey Lectures—which were included in Political Liberalism but which antedate the introduction to the paperback edition and which may antedate the revision of “Overlapping Consensus”—Rawls still repeats A Theory of Justice’s description of the well-ordered society virtually word for word, saying that a WOS is one in which “everyone accepts, and knows that everyone else accepts, the very same principles

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of justice” (PL 35, emphasis added). Since the revised Deweys made their first appearance in Political Liberalism, Rawls seems to have been committed to unanimity about justice well into the drafting of Political Liberalism. The standard reading is therefore committed to the claim that Political Liberalism is really about a concept—namely, legitimacy—that Rawls introduced to solve a problem he only became aware of well after he began to recast justice as fairness. Defenders of the reading may reply that what really concerned Rawls in his later work was the possibility of showing how a well-ordered society could be stable under conditions of pluralism. The story of his work after A Theory of Justice is one of a deeply reflective thinker who came to an ever more profound appreciation for pluralism’s reach and power. Rawls first became aware of the problem pluralism posed for justice as fairness as he had presented it in A Theory of Justice, as the first step of the standard reading says. He began to recast justice as fairness to address that problem. But as he thought about pluralism more deeply, he came to see that the same factors that threatened consensus on justice as fairness as originally presented also threatened consensus on it even when it was recast as a political conception, as the second step says. The third step can then be taken to say that Rawls introduced legitimacy to address the problem he finally came to appreciate. The claim at the fourth step— that Political Liberalism is really about legitimacy—is to be taken not as a claim about what concept was central to all of the work Rawls collected in that book but as a claim about what was central to the most mature presentation of his view found in the latest essays. One problem with this reply is that if it is correct, then Political Liberalism is not about what Rawls explicitly said it is about. For Rawls says quite clearly that the purpose of Political Liberalism is to fix a problem with A Theory of Justice (see PL xv, xli). According to the standard reading, the problem with A Theory of Justice is posed by the possibility of disagreement asserted at the first step, the possibility of disagreement about justice as fairness as originally presented. The standard reading interprets Political Liberalism as addressing the problem posed by the possibility of disagreement asserted at the second step rather than the first. The two problems are different; what unites them, according to the defense of the standard view that I have just imagined, is that both grow out of the fact of pluralism. Far from salvaging the situation, this last claim—that pluralism of comprehensive doctrines and disagreement about political conceptions of justice can be traced to a common source—raises further difficulties

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for the standard reading. Rawls is sometimes read as saying that human beings naturally differ about deep questions of all kinds. Those differences are manifest in free societies simply because, instead of repressing them, free societies tolerate them by honoring various liberties, such as the liberty of conscience and the freedoms of speech, press, and association. In the well-ordered society, it might be thought, human divergence plus equal liberty yield both pluralism about comprehensive views of the good (alleged at the first step of the standard reading) and pluralism about political conceptions of justice (alleged at the second). But this genealogy of pluralism is too superficial. I cannot go deeply into Rawls’s analysis of pluralism here, but very briefly: pluralism arises under free institutions because under those institutions we acquire, and we act under, an idea of ourselves as free. The acquisition of this view of ourselves is part of the educative effect of full publicity (PL 71). The crucial question is what members of a just society would think of themselves as free to do. Rawls offers a clear answer: they would think of themselves as free to form, pursue, and revise their conceptions of the good (PL 30ff.). It is in part by encouraging this conception that free institutions encourage pluralism about comprehensive doctrines. By contrast, institutions of a liberal society do not encourage their members to think of themselves as similarly free to form and revise their own conceptions of the right. Indeed, they cannot. For if they did, they would—in effect—encourage their members to rethink the liberties that allow them the freedom to pursue conceptions of the good and to rethink the conception of themselves and their citizenship that justifies those liberties. Thus it is only by encouraging convergence, or perhaps bounded disagreement, about the right that just societies can encourage pluralism about the good. It is therefore far from clear that disagreements about justice arise for the same reasons as pluralism about the good. Perhaps they do. Or perhaps different views of the good have different conceptions of justice associated with them, so that differences about the good give rise to disagreements about justice. Or perhaps reasonable pluralism about the good is compatible with unanimous agreement on a conception of justice. One indication that Rawls thinks the two kinds of disagreement are fundamentally different is that in a well-ordered society, pluralism about the good would range much more widely than pluralism about justice. For though the comprehensive doctrines adhered to in a WOS would largely be reasonable, their being so is compatible with wide variation among

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doctrines all of which are on a par from a political point view. By contrast, the conceptions of justice that would be endorsed in a WOS would “vary within a certain more or less narrow range” (PL 164) and would have a “focal class” (PL 174). But if the pluralism alleged at the first step of the standard reading and that alleged at the second are significantly different—and, in particular, if they arise in different ways—then it is at best misleading to say that the standard reading captures the result of Rawls’s deepening insight into a single phenomenon called “pluralism.” What of the third step in the standard reading, the claim that the possibility of disagreement about the principles as presented in Political Liberalism led Rawls to shift the focus of his attention from justice to legitimacy? Doubts about this claim are raised by what Dreben says legitimacy is for. He writes: “To say that a law is a legitimate law is not to say that all reasonable citizens agree with it. . . . What you really have to worry about in a liberal constitutional democracy is how, when a law is appropriately passed, it is binding on all citizens, even on those citizens who reasonably can differ with it.” Dreben correctly identifies “what you really have to worry about,” or one of the things “you really have to worry about,” in a liberal democracy. And he is right that Rawls’s treatment of legitimacy shows how that worry is to be addressed. The problem for the third step is that the worry Dreben identifies does not depend upon disagreements of the sort alleged at the second step—disagreements at the level of Rawls’s two principles. For even if citizens of a WOS were unanimous in their agreement on the principles, they could still disagree about the justice of laws their society enacts. Rawls considers this possibility in A Theory of Justice, where he notes that citizens who agree to the two principles could still disagree about economic policies enacted at the legislative stage (TJ 174ff.). In Political Liberalism and later writings, he considers Catholics who regard a liberal abortion regime as unjust and Quakers who find their country’s military policies unjust. These two cases are relevantly like those Rawls considers in A Theory of Justice: they are disagreements about the justice of law and policy that could arise among citizens who all agree with the principles of justice. As I said at the outset and as I shall try to document below, Political Liberalism’s treatment of legitimacy does not add anything new to what A Theory of Justice said about why the law is binding in such cases. And so, contrary to the third step of the standard reading, I do not think Rawls introduced the liberal principle of legitimacy to make a new point about the duties of citizens in light of disagreements of the kind alleged at

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second step. Rather, as we shall see, he introduced it to stress and apply a point he had already made and to make a new point about citizens’ good.

§3. DIFFICULTIES WITH THE STANDARD READING: THE PROJECT OF POLITICAL LIBERALISM The conclusions I have reached so far about the first three steps of the standard reading raise serious doubts about the fourth step: its contention that legitimacy is what Political Liberalism is about. But there are also ample independent grounds for doubting that contention. If Political Liberalism were about legitimacy in the same sense of “about” in which A Theory of Justice is about justice, we would expect Rawls to give a clear statement of the concept or meaning of the term and to give some systematic treatment of its various conceptions, ideally indicating why his favored conception would be adopted in the original position. Instead, what Rawls has to say about legitimacy is maddeningly brief and vague. As John Simmons notes, he never says what “legitimacy” actually means. Rawls does say that the principle of legitimacy he favors would be adopted in the original position, but he says nothing about how the parties in the original position make their decision. Even more problematic for the standard reading is the fact that Rawls fails to engage central questions about legitimacy, including questions whose centrality he quite clearly suggests. For example, late in Political Liberalism Rawls says of legitimacy that “reasonable citizens understand this idea to apply to the general structure of authority” (PL 393). On one way of taking this remark, legitimacy attaches to the political structure— i.e., to that part of society’s basic structure—which exercises authority. On this way of taking it, Rawls thinks that legitimacy applies, at least in the first instance, to a society’s governing apparatus, the state. There are many understandings of state legitimacy on offer in contemporary political philosophy. State legitimacy is sometimes thought of as the state’s possession of a permission right or a justification right. On this understanding, if a state or a government is legitimate, then it is permitted to or is within its rights in doing what states characteristically do—issue directives, employ force, and enforce a monopoly on ultimate coercive power. Sometimes, the legitimacy of a state or government is thought of as being or entailing the power to change the moral status of subjects by imposing obligations that it can expect them to obey. On this

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understanding, legitimacy confers a claim right, since legitimate states and governments can claim obedience. Sometimes legitimacy is said to be, as Simmons says, a “complex right” to impose obligations, claim obedience, and coerce the noncompliant. Each of these ways of understanding legitimacy answers to some of our intuitions. One central question about legitimacy is which if any of these understandings is best. Unfortunately Rawls’s liberal principle of legitimacy, and associated remarks, shed surprisingly little light on that question. The principle says: “Our exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational” (PL 217). This principle does not seem to supply a standard of state legitimacy at all since it seems to apply to exercises of political power rather than to the “structure” or state that exercises that power. Moreover, what it suggests about the various understandings of state legitimacy I canvassed just above is somewhat confusing, at least if taken in conjunction with some of the other things Rawls says. The statement of the principle—and in particular, the phrase “proper and hence justifiable”—suggests that Rawls thinks a state that exercises power legitimately thereby exercises a justification right. Elsewhere, however, Rawls says that a legitimate political authority can issue laws that are “politically (morally) binding” (CP 578); he also implies that citizens have a duty “not to violate” legitimate law and “not to resist [it] with force” (CP 594–595n57, 606). These last passages suggest that the legitimate exercise of power is the exercise not just of a justification right but of a claim right. The standard reading must place a great deal of weight on these passages since that step says that citizens’ perception of legitimacy stabilizes by engaging their sense of duty. Rawls’s remark that legitimate laws are “politically (morally) binding” may seem to justify the third step, for Dreben seems merely to repeat the remark when he says legitimacy stabilizes because citizens who see that a law is legitimate thereby see that they are “politically-morally bound to obey” it. But if legitimacy were as central to Political Liberalism as the standard reading contends at its fourth step, and central for the reason asserted at the third step, we would expect Rawls to argue that this last understanding of legitimacy is the right one and to develop his remarks about the duties of compliance and nonviolent resistance. Instead these remarks are left as suggestive asides.

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Thus Rawls’s treatment of legitimacy leaves enough questions unanswered, and suggests enough different views about legitimacy, that we should be suspicious of the standard reading’s claim that legitimacy forms the subject matter of Political Liberalism. In the next section, I shall sketch a reading of Political Liberalism that implies a very different role for the liberal principle of legitimacy. According to the reading I shall suggest, Political Liberalism is a sustained attempt to fix justice as fairness so that it avoids problems Rawls found in a clearly identifiable set of arguments in A Theory of Justice. Rawls developed the defining concepts of political liberalism—such as liberal legitimacy, public reason, and overlapping consensus—in order to effect the repairs. But Political Liberalism is no more about one of those concepts than it is about the others. To conclude that it is about any of them, and to reach that conclusion by taking the first three steps in the standard reading, obscures the repair effort—which is the central project of that book. To see that, we have to see why Rawls came to think repairs were necessary.

§4. STABILITY IN POLITICAL LIBERALISM As I noted earlier, Rawls says that he recast justice as fairness because of an inconsistency in A Theory of Justice’s account of stability (PL xviii). I have argued that the standard reading mistakes the source of the inconsistency and misidentifies the reasons for Rawls’s political turn. To see where the inconsistency lies, it is useful to recall how the argument for stability goes. A Theory of Justice’s argument for stability depended upon two conclusions. Rawls had argued that justice as fairness would be stable first, because members of a well-ordered society would all acquire a sense of justice informed by the principles of justice and second, they would all affirm that maintaining their sense of justice belongs to their good (cf. TJ 450). In A Theory of Justice, Rawls refers to the second conclusion as the “congruence” of the right and the good. Rawls remained satisfied with the argument he had offered for the first stability conclusion in A Theory of Justice, chapter 8 (JF 196n17), and he continued to rely on a similar argument in Political Liberalism (PL 141). What he came to see was that A Theory of Justice had relied on unrealistic assumptions about the good in order to reach the second stability conclusion in chapter 9.

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More specifically: to show congruence, Rawls assumed that a wellordered society would encourage members’ views of the good to converge, so that—wherever they differed—they all valued their sense of justice for the same reasons, based on the same ethical values and ideals and on the same desires for certain goods whose value was accounted for by the thin theory of goodness (cf. TJ 498ff.). It was by assuming this partial convergence that Rawls supposed members of a WOS would share a “comprehensive, or partially comprehensive, doctrine[]” (PL xviii). But, Rawls came to think, the assumption that just institutions would encourage such convergence is unrealistic and is inconsistent with the fact that those institutions encourage pluralism about the good. Rawls made the transition to Political Liberalism—and introduced a set of distinctively political values and ideals—so that he could argue for the second stability conclusion without relying on an unrealistic convergence and answer questions raised by the new argument. Here is a very rough approximation of the new argument for the second stability conclusion: (1) In a well-ordered society, justice as fairness would be supported by an overlapping consensus of reasonable comprehensive doctrines. When an overlapping consensus obtains, “reasonable doctrines endorse the political conception, each from its own point of view” (PL 134). So: (2) According to each reasonable comprehensive doctrine, the good of realizing the political ideals, values, and principles of justice as fairness “normally outweigh whatever values are likely to conflict with them” (PL 156). What happens, then, when reasonable members of the WOS take up the viewpoint of their comprehensive doctrines and assess justice as fairness? If an overlapping consensus obtains, as (1) says, and if (2) follows from (1), then: (3) Reasonable members of the WOS all affirm that the good of acting from the values and principles of justice as fairness, and of living up to its ideals, “normally outweigh whatever values are likely to conflict with them.”

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If that’s right, and if members of the WOS anticipate confronting only normal political circumstances, then: (4) Reasonable members of the WOS all affirm that maintaining an effective desire to act from the values and principles of justice as fairness, and to live up to its ideals, belongs to their good. Since the desire referred to in (4) just is a sense of justice, Rawls can get to the conclusion he wants: C: Reasonable members of the WOS all affirm that maintaining an effective sense of justice, informed by justice as fairness, belongs to their good. If members of the WOS would all acquire a sense of justice, and if the argument for C is sound, then members of the WOS will develop and affirm allegiance to a just constitution and will support the institutions that implement it. Then justice as fairness will be stable for the right reasons. My statement of the argument for C is regrettably rough. Many details need to be filled in, and game-theoretic problems about assurance have to be overcome. A full defense of the argument would show that it is more realistic to suppose that just institutions would encourage an overlapping consensus on political values, as Rawls does in the first premise, than it is to suppose that they would encourage the convergence on ethical values and rational desires that Rawls had assumed in A Theory of Justice. I pass over these questions because my primary concern here is to recover an account of legitimacy that fits into this reading of Rawls’s project in Political Liberalism. I provide just enough details about that central argument to motivate the account of legitimacy. Note that at crucial steps—namely, (2) and (3)—the new stability argument depends upon political values and ideals of justice as fairness being seen to outweigh values and ideals that compete with them. I believe that among the political ideals of justice as fairness as laid out in Political Liberalism is one that we might call the Ideal of Democratic Governance. This is “the ideal of citizens governing themselves in ways that each thinks the others might reasonably be expected to accept” (PL 218; cf. 139–140). This ideal is realized in the ongoing political life of a well-ordered society when

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citizens follow the guidelines of public reason and govern themselves in accordance with a just constitution. Though I cannot go into detail here, I believe that the political Ideal of Democratic Governance is introduced to replace an ethical ideal that did similar work in A Theory of Justice but that depended upon more convergence on the good than it is reasonable to expect in a pluralistic society like the well-ordered society. Very briefly: the second stability conclusion—that members of a WOS would affirm that maintaining their sense of justice belongs to their good—depends upon the claim that they would experience political society itself as a good. In A Theory of Justice, Rawls had argued that it would be experienced as a good because it would realize the ideal of a social union of social unions (TJ §79). He came to realize that the social union of social unions was “no longer viable as a political ideal once we recognize the fact of reasonable pluralism” (PL 388n21). The stability argument of Political Liberalism therefore required a different argument that political society would be experienced as a good, an argument that appealed to a different and less demanding political ideal. That ideal is the Ideal of Democratic Governance. To see how the Ideal of Democratic Governance contributes to stability, consider: A constitution specifies the structure of government. It says of what organs government consists and how power is apportioned among them. A constitution is also, as Rawls writes in A Theory of Justice, “the highest-order system of social rules for making rules” (TJ 195). As such, it specifies the procedures by which policies are made, laws are enacted, and the constitution itself is amended. It also specifies the rights and liberties that must be respected when government power is exercised. These procedures, rights, and liberties are the “essentials” of the constitution (PL 227ff.). If the procedures are familiar democratic ones for arriving at decisions when unanimity cannot be expected, and if the rights and liberties are given by a principle chosen in the original position, then citizens of the well-ordered society may reasonably be expected to endorse the essentials of their constitution. Rawls says at one point that “the aim of public reason is to articulate” an ideal expressed by a democratic constitution: “the ideal of a people to govern itself in a [democratic] way” (PL 232). Whatever else he means by this, Rawls clearly thinks that those exercising political power under a democratic constitution—including voters (PL 217)—should adhere to the guidelines of public reason. Thus ongoing governance in accord with a democratic constitution realizes many very great political

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values, including the protection of individual liberty, the provision of a social minimum, the rule of law, transparency, mutual respect, political autonomy, and adjudication of central questions by clearly known public procedures on the basis of values that all can accept. Because justice as fairness shows how these values fit together, it is accurate to say that the well-ordered society of justice as fairness realizes a unified political ideal of self-government. Seeing that this ideal—and its very great constituent goods—is available when citizens govern themselves in accordance with a just democratic constitution, we can begin to see why Rawls thinks citizens who adhere to a variety of comprehensive doctrines would find some intrinsic value in a just constitutional democracy. And so we can begin to see why Rawls thinks that C and its consequences are true. That is, we can begin to see why the members of a well-ordered society would affirm that their own sense of justice and their own support for the constitution are traits of character that belong to their good. We could begin to see why they would affirm that those are traits they will try to reinforce rather than to uproot, so that they can participate in the political ideals that a WOS makes available. But if the argument for C is right, then they must reach these judgments because—as (3) says—they judge that realizing the Ideal of Democratic Governance normally outweighs, or normally helps outweigh, competing values. And—as the transition from (3) to (4) requires—they must anticipate confronting only normal political circumstances. On my reading, Rawls appeals to the notion of legitimacy to show how that value can be seen to outweigh competing ones in the face of difficult cases, cases that might seem abnormal enough that some citizens are tempted to rethink their commitment to justice. Showing this will show how (3) can be true and how the new stability argument can succeed and the inconsistency Rawls found in A Theory of Justice can be avoided.

§5. THE DIFFICULT CASES What are the difficult cases? In A Theory of Justice, Rawls imagines a multistage sequence for the choice and implementation of principles of justice (TJ §31). The kind of cases I have in mind arise at the stages at which the principles are implemented. Though I believe difficult cases can arise at the constitutional stage, the stage at which the constitution is written, I shall ignore that complication. Instead, I shall suppose that members of

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the well-ordered society value the ideals realized under a just constitution but that their attachment to the constitution can be threatened at later stages of implementation. I have suggested that Rawls made the transition to Political Liberalism because he came to see that the argument for C could fail for some members of the WOS. It is sometimes alleged—as by Stephen Holmes—that Rawls made the transition from A Theory of Justice to Political Liberalism because he came to think that religious believers might reject justice as fairness as presented in A Theory of Justice. And so it would be natural to elaborate my suggestion by saying that those of whom the argument for C fails are those Rawls calls “citizens of faith.” While I believe that A Theory of Justice’s arguments for C can be shown to fail for some reasonable religious believers in the well-ordered society, I do not think that that fact is what actually led Rawls to recast justice as fairness as a political liberalism. I do think, though, that as Rawls reformulated his view, he took up some of the problems he did because of the likelihood that the WOS would include reasonable citizens of faith whose religious views shape their views about the justice of legislation. This includes the problem posed by the hard cases that legitimacy is supposed to address. So consider some member of the WOS, Jan, whose religious views ground objections to an exercise of legislative power. Jan may, like the Catholics to whom Rawls refers in “Public Reason Revisited,” have religious objections to the legislative enactment of the abortion regime Rawls suggests that justice allows. Or she may be a religious pacifist who opposes the levying of taxes to support the use of military power sanctioned by Law of Peoples, like the Quakers Rawls referred to in “Reply to Habermas” (PL 393–394). In these cases, I am supposing Jan judges that the use of political power to implement the principles is unjust according to her religion’s standards of justice. By her lights, there are important goods to be realized in political life—such as those she thinks would be realized by pacifism or by the legal protection of fetal life—that are not realized in the well-ordered society but that she thinks would be realized with different legislation. Moreover, by exercising political power as it does, she thinks, the WOS allows serious injustices. The combination of opportunity cost and injustice may lead Jan to have serious reservations about the constitution that implements justice as fairness. That Jan has these reservations does not in itself tell against step (3) of the stability argument. In fact, the wording of step (3) suggests that Rawls anticipated that some members of the WOS would have such reservations. Step (3) says that reasonable members of the WOS all affirm that

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acting from the values and principles of justice as fairness, and living up to its ideals, “normally outweigh whatever values are likely to conflict with them.” If we include the sum of injustice and opportunity cost in what has to be outweighed, then (3) seems to presuppose conflicts of value of just the sort that Jan sees. So long as there are political values that Jan thinks normally tip the balance in favor of justice as fairness, (3) will be true of her. The question is what those values are and how much weight Jan is likely to attach to them. I have said that one of the values to which (3) refers is the value of realizing the Ideal of Democratic Governance. Can that value tip Jan’s balance of reasons in favor of a constitution that implements justice as fairness but is thought to yield an unjust law? It’s not at all clear that it can. For Jan may deny that the Ideal of Democratic Governance is realized in the problem case. Suppose she knows enough democratic theory to think of political power as Rawls does—as “the power of the public, that is, the power of free and equal citizens as a collective body” (PL 136), of which each citizen has “an equal share” (PL 217). So she thinks that political power is in part hers and that its exercise must be justifiable to her, particularly if that power—her power—is said to be exercised on her behalf. Suppose further that Jan thinks exercises of power are justifiable only if they satisfy the justificatory standard that is spelled out at length in A Theory of Justice: she thinks they are justifiable only if they are just. Then, because she thinks political outcomes in the cases I have imagined are unjust, she will think power has been exercised in a way that cannot be justified to her and that an important requirement of political morality has not been met. Moreover, Jan will think, others should know that people with her beliefs will find such exercises of power unjust and hence unjustifiable, and so they could not have expected her to endorse them. And so she will think that the good of Democratic Governance has not been realized in the difficult cases and not realized precisely because of what makes those cases difficult in the first place: they are cases in which, from Jan’s point of view, an unjust law has been enacted. Of course, even this conclusion does not show that (3) is false of Jan or that Jan thinks the legislation to which she objects is an abnormal case that leads her to rethink her commitment to a just constitution. There may be other political goods that do not depend upon the justice of political outcomes and that Jan thinks do outweigh the conflicting values in the cases I have imagined. But since I want to make a point about the connection between legitimacy and the Ideal of Democratic Governance, I shall—somewhat artificially—ignore this possibility. Or Jan may think

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that since there are so many other cases in which the good of Democratic Governance is available, her balance finally tips in favor of justice as fairness and the constitution despite the reservations engendered by the difficult cases. But now suppose that Jan judges one or another of the difficult cases to be extremely important and the combination of opportunity cost and injustice in those cases to be very weighty. The fact that the good of Democratic Governance is realized in other cases may not seem to her to outweigh the injustice and opportunity cost in these cases, especially since she thinks that good is not realized in them. Then the case or cases will pose difficulties for (3) or for the move from (3) to (4). Because of the forces of social learning at work in a well-ordered society, Jan may have some tendency to judge and act according to justice as fairness. But if she does, she will be of two minds about justice and may think, on reflection, that that tendency misleads her in important cases. Step (4) would then be false of her, and Rawls could not infer what I have said is his desired conclusion C. I am not supposing that the failure of the argument for C implies that Jan and those like her will rebel against the well-ordered society or will otherwise attempt to destabilize it. But I am entertaining the possibility that they will live in the WOS in much the same way that the religious ethicist Stanley Hauerwas says Christians like himself live in contemporary America: as “resident aliens” whose status is reflected not in their reduced legal privileges but in their alienation from or their ambivalence about liberal values. And so while the presence of citizens like Jan would not show that the WOS would be unstable or unjust, it would force us to ask whether justice as fairness, and the constitution that implements it, would be stable for the right reasons. It would therefore raise troubling questions about Political Liberalism’s treatment of stability. Lest we doubt that these questions troubled Rawls, note that he says one of the most important questions confronting political liberalism is: “How is it possible for citizens of faith to be wholehearted members of a democratic society when they endorse an institutional structure satisfying a liberal political conception of justice with its own intrinsic political ideals and values, and when they are not simply going along with it in view of the balance of political and social forces?” (PL xxxviii). If we attach some emphasis to “wholehearted,” as I am inclined to do, then we can see that the objection I have used Jan to develop is one Rawls took quite seriously. We gain considerable insight into Rawls’s reasons for introducing

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legitimacy by reflecting on how he would reply to it. How would Rawls respond so that Political Liberalism’s stability argument succeeds?

§6. STABILITY AND LEGITIMACY IN POLITICAL LIBERALISM I have supposed that Jan judges certain exercises of power to be unjust on the basis of her religious comprehensive doctrine. Rawls could argue that comprehensive doctrines like Jan’s will not be found in a well-ordered society because the social forces at work in that society will liberalize comprehensive doctrines, at least in the longer run—where “liberalize” means bring it about that either comprehensive views do not imply the injustice of political outcomes permitted by justice as fairness, or, if they do, they do not attach sufficient weight to cases of injustice to falsify (1), (2), (3), and (4). Thus, he might say, the sociology of the well-ordered society insures the success of the stability argument. There are scattered remarks that suggest that Rawls thinks such liberalization will occur in the WOS. In “The Idea of Public Reason,” for example, he says that a “reasonable and effective political conception may bend comprehensive doctrines toward itself ” (PL 246). Part of what Rawls has in mind, I think, is that when citizens of diverse comprehensive views live under a constitution that implements justice as fairness, they may come to appreciate the “intrinsic political ideals and values” of that conception of justice, come to value self-government under the constitution for its own sake, and come to do so from within their comprehensive doctrines. But the “may” in Rawls’s remark also betrays a tentativeness that is appropriate in the present connection since the answer I am now considering to the difficult cases would require a lot of bending. Liberal democratic institutions are of relatively recent provenance, at least compared to the major world religions. At this point, we do not know enough about the long-term effects of liberal democratic institutions on religion to know whether any more definite an assertion is warranted. Moreover, such historical evidence as we have bears on the effects of institutions in societies that are far from well ordered. So it would be a mistake for Rawls to rely exclusively on this strategy for dealing with Jan’s case and salvaging Political Liberalism’s stability argument. Rawls could hold that Jan’s religious view is false, at least as regards the injustice of the constitution or the legislation in question. He could also hold that the state may proceed on the assumption that her view is false

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and may try to bring it about that Jan and her coreligionists recognize its falsity. Jan’s judgment that the constitution or legislation is unjustified rests on the prior judgment that it is unjust. So the state’s attempt to persuade her of the falsity of her religious views would, if successful, have the effect of disabusing her of the judgment that threatens the truth of (3), the move to (4), and the soundness of the stability argument. For good and familiar reasons, however, Rawls is reluctant to pronounce on the truth of comprehensive doctrines (PL 127). I shall not review his reasons here. For now, suffice it to say that Rawls does not appeal to the falsity of Jan’s religious views to answer the challenge she poses. Rawls could maintain that Jan is being unreasonable and that she is therefore not a counterexample to propositions (3) and (4), which refer to reasonable citizens. This is a strategy Rawls is often accused of relying on to dismiss difficult cases, especially cases involving those who oppose abortion. But, as I believe Rawls himself actually recognized, it will not do. We have already seen that Rawls cannot count on the social forces of a well-ordered society liberalizing comprehensive doctrines enough to bring it about that there are no citizens like Jan. Indeed, for all Rawls has shown, there may be a large number like her in the WOS. If there are, and if they are deemed unreasonable, then the stability argument laid out above would not show what it is supposed to show. For the argument is not intended to show how some subset of citizens in a WOS can support justice as fairness for the right reasons while the rest regard it as a modus vivendi or go “along with it in view of the balance of political and social forces” (PL xl). The argument is supposed to show how justice as fairness can enjoy support for the right reasons society-wide. The argument will show that only if (3), (4), and C all refer to the overwhelming majority of citizens—hence only if an overwhelming majority of the citizens are taken to be reasonable. So, while dismissing Jan and citizens like her as unreasonable may salvage the stability argument in name, it would do so in name only, by sacrificing the larger point that Rawls wants to make. If Political Liberalism’s treatment of stability is to succeed, then, Rawls must take Jan to be reasonable, and he must show how (3), (4), and C can be true of her. That means he must show how Jan can take the values, principles, and ideals of justice as fairness to outweigh competing values even in difficult cases. As we have seen, he must show how she can do so without denying the truth of her religious views. At this point, it will help to recall why Jan posed a difficulty for the stability argument of Political Liberalism: because of her religious views,

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Jan thinks that in an important case or cases, the well-ordered society fails to realize certain great goods in political life and that it enacts serious injustices. Step (3) suggests that Jan will take the great political goods that are realized in a WOS normally to outweigh this combination of injustice and opportunity cost. The problem with this suggestion is that Jan does not have the good of Democratic Governance available in the difficult or abnormal cases to do the outweighing. For that good is available to Jan only if she sees that the relevant exercises of power are—and are believed by others to be—justifiable to her. She thinks they are not justifiable to her precisely because she thinks those exercises of power issue in unjust outcomes and because she thinks the justice of outcomes is necessary to justify the exercises of power that produced them. Thus the problem Jan poses for the stability argument of Political Liberalism is a compatibility problem: Jan’s religiously informed beliefs about justice are incompatible with the belief that the exercises of power in the difficult cases are justifiable. To avoid the problem, Rawls needs to show how these beliefs can be compatible after all. The Rawls of A Theory of Justice provided one salient standard of political justifiability: justice. The Rawls of Political Liberalism could show how the two beliefs can be compatible if he could identify and render salient some other standard of justifiability that applies to exercises of political power, one that is less demanding than justice and that it is satisfied in the difficult cases. The liberal principle of legitimacy supplies that standard. According to the standard reading, the difficult cases arise because of disagreements about fundamental principles of justice. The question they raise is that of how citizens like Jan can come to recognize their duty not to use force in resisting unjust laws. Rawls is said to have introduced the liberal principle of legitimacy to answer that question and show stability. The problem with this reading is that the difficult cases concern disagreement about the justice of laws and policies. As I argued earlier, such cases can arise even without disagreement about principles of justice. The standard reading is correct to claim that Rawls thinks Jan is duty-bound not to resist laws with force even if she thinks they are unjust and that citizens’ recognition of this duty contributes to the stability of justice as fairness and the constitution that implements it. But we shall see that Political Liberalism does not add to A Theory of Justice ’s treatment of the duty to obey the law. By supposing that the only question raised by the difficult cases concerns citizens’ sense of right, and by exaggerating the novelty of Political Liberalism’s answer to that question, the standard reading obscures what really is new and central to Political Liberalism: the new

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stability argument sketched at the beginning of §4. The liberal principle of legitimacy helps address questions that the difficult cases raise about that argument. As we saw earlier, the principle says that the exercise of power “is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational” (PL 217). We also saw earlier that government power is exercised “in accordance with” the democratic constitution of the wellordered society if those exercising it follow the procedures laid down in the constitution, respect citizens’ rights and liberties, and adhere to the guidelines of public reason. Faced with exercises of power they believe to be unjust, citizens like Jan can still see that those exercises—including the votes and public debates that preceded them—followed established constitutional procedures and were duly constrained. They can also see that exercises of power like the legalization of abortion or the use of military power were based on reasons of the right kind, even if they themselves would have weighted those considerations differently to arrive at outcomes they regard as more just. They can therefore see that these exercises of power are “in accordance with” the constitution of the WOS and therefore satisfy the liberal principle of legitimacy. If citizens like Jan recognize legitimacy as a form of political justification, then they can recognize that the laws to which they object are justified. They can do so without having to deny the truth of their religious views and without having to deny that those laws are unjust. This solves the compatibility problem. Rawls thinks once the compatibility problem is solved, it is clear how cases that pose a problem for the stability argument of Political Liberalism are to be handled. We saw that if justice were the only standard of political justification Jan accepted, then—since the Ideal of Democratic Governance requires that exercises of power be justifiable—she might well deny that the enactment of an unjust law realizes the goods of Democratic Governance. But if she accepts legitimacy as a standard and recognizes that the law to which she objects still meets it, then the grounds for her denial are removed. Furthermore, the legitimacy of a law is derived from the way that it is enacted. In a democracy like the well-ordered society, a law’s legitimacy is the result of its having been enacted by citizens and legislators following the guidelines of public reason and acting “in accordance with a [democratic] constitution the essentials of which all citizens may reasonably be expected to endorse” (PL 217). If Jan accepts an unjust law as legitimate,

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then it must be because she knows that the law was enacted in this way. If she knows that it was enacted in a way that confers legitimacy, then she knows that the exercise of power by which it was enacted was an exercise in Democratic Governance. Not only does she lack grounds for denying that the goods of Democratic Governance were realized in the difficult case, but she has compelling grounds for affirming that they were realized. She can therefore see even the enactment of an unjust law as an instance of “the ideal of citizens governing themselves in ways that each thinks the others might reasonably be expected to accept.” If realizing that ideal weighs heavily enough with Jan that (3) and (4) are true of her, so that she supports the constitution despite the enactment of the law, then she must attach considerable weight to the legitimacy of the law’s enactment. She must not just accept legitimacy as a standard of political justification; she must take it to be an important standard. Once we see what makes an exercise of power legitimate, we can see why she might do that. The ongoing legitimate exercise of power under a just democratic constitution realizes the political goods of Democratic Governance, and we have seen how great those goods are. If Jan recognizes the importance of these goods and attaches enough weight to them to compensate for the perceived injustice of the law, then (3) and (4) will be true of her, and she will affirm her support for the constitution. Rawls sums up his brief discussion of Quakerism in “Reply to Habermas” by remarking that “This [case] illustrates how political values can be overriding in upholding the constitution itself, even if particular reasonable statutes and decisions may be rejected” (PL 394). The case of Jan illustrates the summary point that I take Rawls to be making in the remark: that citizens can affirm their support for a constitution while rejecting particular statutes as unjust. Though Rawls raises difficult cases that are similar to Jan’s, his discussion of those cases, in the “Reply to Habermas” and elsewhere, is often unsatisfying. Rawls implies, for example, that his treatment of the difficult cases turns on citizens “recogniz[ing] the familiar distinction between accepting as (sufficiently) just and legitimate a constitution . . . and accepting as legitimate (even when not just) a particular statute or a decision in a particular matter of policy” (PL 393). But he does not elaborate by spelling out exactly why it matters that citizens recognize the distinction to which he refers, nor does he show just how the conclusion about “overriding[ness]” bears on his new treatment of stability. He banks too heavily on the “familiar[ity]” of the distinction and so does not say enough about why citizens might think legitimacy is an important form of justification. As a result, it is hard to see exactly how Rawls thinks the principle of legitimacy

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helps him cope with difficult cases or what its significance is for the larger project of Political Liberalism. By laying out Rawls’s argument for C, by showing how the difficult cases threaten that argument, and by appealing to the Ideal of Democratic Governance and its constituent goods, the interpretation provided here suggests some answers. Of course, on my reading, too, there are still some things about which Rawls should say considerably more. The most obvious of these can be seen by reflecting on Rawls’s acknowledgment that while legitimacy is less demanding than justice, “laws cannot be too unjust if they are to be legitimate” (PL 428). This suggests that laws cannot be judged to be too unjust if they are to be judged to be legitimate. If Jan thinks the statute to which she objects is too unjust, she will judge it illegitimate, and she may withdraw or qualify her support for the constitution that purportedly legitimated it. Thus if the notion of legitimacy is to do the work I have said it does, it must still be the case that Jan thinks the statute to which she objects falls within the range of injustice that legitimacy allows. Rawls seems to acknowledge as much in the summary remark about Quakerism that I quoted earlier, where he contrasts “upholding the constitution itself ” with rejecting “particular reasonable statutes and decisions.” But if Jan thinks that a liberal abortion regime or the use of military force is unjust, what would she have to believe about political disagreement on these matters to think that the statutes and decisions to which she objects are still “reasonable” and fall within the acceptable range of injustice? Presumably, she must think that these disagreements are reasonable disagreements, disagreements attributable to the burdens of judgment (PL 55). The problem is that there may be people who deny that disagreements about abortion or war have that status. Since these people deny the burdens of judgment, Rawls could say that they are unreasonable (PL 55), that they are therefore not counterexamples to (3) and (4), and hence that their presence in the well-ordered society doesn’t undermine the argument for C. But if he says this, he may seem to be salvaging the stability argument by relying on a response that I said earlier would not do. In that case, introducing the liberal principle of legitimacy merely postponed the point at which Rawls would have to rely on it. The problem with dismissing Jan as unreasonable stemmed from the possibility that a well-ordered society would include far too many citizens like her. As we saw, that would mean that the argument for C could not show that justice as fairness and a just constitution would be stable for the right reasons. But even if there are many citizens of the WOS who regard

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one or another statute as in some way unjust, I think Rawls supposes that the vast majority of them will regard these statutes as legitimate. Once we see what goods are realized when citizens govern themselves according to a constitution capable of conferring legitimacy, he thinks it plausible that they will regard the legitimacy of the statutes to which they object as weighty enough to override their injustice. There still may be some citizens in the WOS for whom political values are not overriding, but he thinks there would be far fewer than there would be if citizens evaluated statutes and decisions by justice alone. Thus the principle of legitimacy enables Rawls sharply to reduce the number of citizens who count as unreasonable and who merely go “along with [the constitution] in view of the balance of political and social forces” (PL xl). If the number is small enough, then despite their presence in the WOS, the argument for C and its consequences shows how justice as fairness can be stable for the right reasons. This line of thought brings us to another subject about which Rawls should have more to say. Early in A Theory of Justice, Rawls says that, as a theory of generative grammar describes our “sense of grammaticalness,” so “one may regard a theory of justice as describing our sense of justice.” One part of the theory identifies principles that, when applied conscientiously, lead us to everyday judgments of justice (TJ 9). Another part shows how those growing up under just institutions might acquire a sense of justice. One of the most interesting parts of the theory shows how “moral principles can engage our affections” (TJ 416) so that citizens of a well-ordered society are moved by their judgments of justice and affirm their sense of justice. This part of the theory depends upon their affections being engaged, according to psychological laws Rawls lays out, by a social ideal: the social union of social unions (TJ 456–464). According to A Theory of Justice, this engagement of their affections helps stabilize justice as fairness. If what I have argued so far is right, then the Rawls of Political Liberalism must have thought that citizens of the well-ordered society would have a sense of legitimacy, as well as—or as part of—a sense of justice. The Rawls of Political Liberalism identifies a principle of legitimacy that he says is adopted in the original position, like the principles of justice. That principle, when applied conscientiously, is supposed to lead them to their everyday judgments about the justifiable exercise of power. Moreover, the sense of legitimacy must interact with the sense of justice in complex ways since unjust exercises of power can be judged legitimate provided they are not judged too unjust. Judgments of legitimacy are supposed to

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move citizens of the WOS so that they support the constitution and exercise power legitimately themselves when they vote. I believe they are supposed to be moved by judgments of legitimacy because their affections are engaged by a new political ideal: not the social union of social unions, for reasons touched on earlier, but the Ideal of Democratic Governance. According to Political Liberalism, this engagement of their affections helps stabilize justice as fairness. To flesh out this account, Rawls would need to say how the principle of legitimacy is chosen in the original position, how members of the well-ordered society acquire a sense of legitimacy, and what psychological principles explain attachment to the various goods that make up the Ideal of Democratic Government. Of course, he offers nothing of the kind. That shows, contra the standard reading, just how far Political Liberalism is from providing a theory of legitimacy that is comparable to the theory of justice Rawls developed in his earlier work. In fact, the notion of legitimacy is frustratingly undertheorized. But though it is undertheorized, it enables Rawls to answer what I said earlier is one of the central questions of Political Liberalism: “How is it possible for citizens of faith to be wholehearted members of a democratic society when they endorse an institutional structure satisfying a liberal political conception of justice with its own intrinsic political ideals and values[?]” (PL xl, emphasis added). Wholehearted membership seemed to be impossible so long as religiously informed beliefs about justice seemed to be incompatible with the belief that the exercises of power in the difficult cases are justifiable. It is possible if justice as fairness is supported by an overlapping consensus of comprehensive doctrines and if adherents of those doctrines recognize the burdens of judgment, develop a sense of legitimacy, distinguish legitimate from just exercises of political power, distinguish acceptance of the constitution from “accepting as legitimate (even when not just) a particular statute or a decision,” and attach sufficient weight to the Ideal of Democratic Governance. Whether that possibility is likely to be realized depends upon details that Rawls does not provide.

§7. THE TEXTUAL PUZZLES Rather than attempting to fill in details on Rawls’s behalf, I want return to textual puzzles I surveyed at the end of §3 and show that the reading offered here suggests some solutions.

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As I noted earlier, a showing of legitimacy is sometimes thought to be a demonstration that states have the right to impose obligations and claim obedience. This way of thinking about legitimacy is central to the standard reading. Rawls’s treatment of political obligation in A Theory of Justice is notoriously controversial. If showing citizens’ duty to obey the law were as central to Political Liberalism as the standard reading asserts, we would expect the later Rawls to revisit these topics in his later work. For if the standard reading is right, then the addition of a principle of legitimacy to his theory positioned him to answer many of the questions raised about his earlier account. But with the exception of a passage I cited previously in which Rawls says that legitimate laws are “politically (morally) binding” and that citizens are “not to resist [such laws] with force,” he seems not to have revisited the subject of political obligation at all (CP 578, 606). I believe Rawls touched on the subject only in passing because he did not think he had anything to add to what he had said before. In A Theory of Justice, Rawls had argued that the duty to obey the law follows from the natural duty of justice, for that duty requires us “to support and to comply with” just or reasonably institutions that exist and apply to us (TJ 99). The duty of compliance also “binds us to comply with unjust laws and policies, or at least not to oppose them by illegal means as long as they do not exceed certain limits of injustice” (TJ 311). This last claim and its defense in A Theory of Justice are often overlooked. But in that book, Rawls had said that “being required to support a just constitution, we must go along with one of its essential principles, that of majority rule. In a state of near justice, then, we normally have a duty to comply with unjust laws in virtue of our duty to support a just constitution” (TJ 311). Thus even in A Theory of Justice Rawls had clearly stated that citizens of the well-ordered society have a duty to comply with laws they regard as unjust, or not resist them with illegal means, if they satisfy what he would later describe as the conditions of legitimacy. And even in A Theory of Justice he had clearly implied that if citizens recognize the duty of compliance, it is because they recognize that laws they regard as unjust satisfy those conditions. Political Liberalism and other late writings return to the duty to obey the law because the difficult cases concern citizens who are subject to laws they might not think themselves dutybound to obey. If political liberalism is to be possible, it must be possible for these citizens to recognize their duty. To show how they can, Rawls does not provide a new account of political duty and obligation. He simply

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reminds us of what he said in A Theory of Justice. Citizens in the difficult cases, like other citizens, will recognize their duty to obey an objectionable law if they recognize that the law satisfies certain conditions— conditions to which Political Liberalism draws our attention by labeling them conditions of legitimacy. If I have correctly identified the really novel work that the principle of legitimacy enables Rawls to do in Political Liberalism, then we can see why he did not dwell on its connection with political duty and obligation. What Rawls says about legitimate exercises of political power helps show how citizens of the well-ordered society could affirm that their sense of justice and their disposition to support a just constitution belong to their good. But Rawls’s treatment of legitimacy was never intended to provide some new argument that citizens of the WOS are obligated to follow directives that are properly issued by legitimate states or that legitimate states have claim rights to the obedience of their citizens. Another reason Rawls does not connect legitimacy and the claim rights of legitimate states is, as I indicated in §3, that Rawlsian legitimacy does not attach to states, at least if we understand the state as a society’s governing apparatus. It attaches, in the first instance, to constitutions. This is what we would expect if, as I have said, Rawls introduces the principle of legitimacy primarily to help show how it is possible for citizens to affirm the value of their sense of justice and their support for a just constitution rather than to show anything new about why citizens are obligated or duty-bound to obey a just state. It is also what the wording of the principle of legitimacy would lead us to expect, at least when the principle is read in conjunction with other of Rawls’s remarks. Recall that the principle of legitimacy says, roughly, that political power—such as legislative power—is exercised legitimately when it is exercised “in accordance with a [just] constitution.” The power to pass laws is “in accordance with” a constitution only if it is exercised “in accordance with” the procedures for passing laws laid out in that constitution, such as majority rule. In “Reply to Habermas,” Rawls predicates “legitimate” on those procedures, saying that “a legitimate procedure gives rise to legitimate laws and policies passed in accordance with it.” Taking the two passages together, we can read Rawls as saying that it is the constitution that is legitimate in the first instance and that it is a legitimate constitution that “gives rise to legitimate law” when laws are passed “in accordance with it.” More straightforward textual support comes from Rawls’s summary remark about the problem case of Quakerism where, as we saw,

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Rawls refers to a “legitimate . . . constitution” in his treatment of one of the difficult cases. One text that seems to tell against my reading is the passage in which Rawls says of legitimacy that “reasonable citizens understand this idea to apply to the general structure of authority” (PL 393). If we take “structure” to refer to a part of the basic structure that exercises authority in a wellordered society, then Rawls would seem to be implying that “legitimate” applies to the state. But we need not read Rawls this way. Instead, we can read him as saying that it applies to the structure of—understood as the form of—the state and to the procedures by which governmental authority is exercised. Since these are given by the constitution, we can read the passage as supporting my thesis about the object to which “legitimacy” attaches. Finally, I said that one of the outstanding questions about legitimacy is what kind of right legitimate states enjoy. One of the puzzling features of Political Liberalism is that it seems to shed so little light on the question of which understanding of legitimacy is the best of those currently on offer. If I am right about Rawls’s reasons for making the principle of legitimacy explicit, we can understand why he showed so little interest in that question. For if I am right, then, though Rawls’s texts allow us to infer that a state exercises a right when it exercises power legitimately, his more pressing interest lies in connecting legitimacy with various axiological notions that are new to Political Liberalism—in particular, with the good of dispositions to respond to the political values that are realized by self-government under a just constitution. If this is right, then for Rawls, the preferred understanding of “legitimacy” prominently includes an element that is quite different than those I canvassed at the outset. Since he takes “legitimacy” to apply, in the first instance, to constitutions and derivatively to laws and directives passed “in accordance with” them, for Rawls, showing that a constitution is legitimate involves showing that it is worthy of support.

§8. CONCLUSION I conclude by summarizing the argument. I said at the beginning of §4 that Rawls introduced the conceptual apparatus of Political Liberalism to remedy a difficulty in A Theory of Justice’s treatment of stability, found in part III, and to answer questions raised by the remedy. In saying that, I meant

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to deny the standard reading’s contention—asserted at its first step—that he introduced that apparatus to shore up an argument for the principles in part I of A Theory of Justice. I also meant to deny one of the radical implications of that reading—namely, that in Political Liberalism, Rawls reoriented his thought around a new concept of which he intended to offer a theory. Rather, I meant to assert that he introduced that apparatus in order to spell out and sustain the stability argument I sketched in §4. On my reading, a prominent part of the conceptual apparatus of Political Liberalism—the principle of legitimacy—is deployed to deflect a potential problem with the new stability argument, a problem posed by difficult cases and illustrated by Jan. If that problem can be deflected and the new stability argument sustained, then a well-ordered society will be stable for the right reasons. Since the WOS that is thereby stabilized is or can be one that complies with the two principles of justice defended in A Theory of Justice, I mean to deny that Political Liberalism’s stress on legitimacy is part of a moral retrenchment on Rawls’s part. The notion of legitimacy deflects difficulties with the new stability argument of Political Liberalism by reminding us of conditions of political duty laid out in A Theory of Justice. Much more interestingly, it helps us see that just constitutions that enact unjust laws can still realize very great political goods. The most interesting and novel part of Rawls’s treatment of legitimacy therefore connects it not with the right—as on the standard reading—but with the good. Seeing that helps us gain a more accurate view of Rawls’s project in Political Liberalism and of the concepts on which the execution of that project depends.

notes I am grateful to Dan Brudney, Ryan Hammond, Ben Laurence, Malcolm McCollum, Caleb Pearl, John Simmons, and audiences at the University of Tennessee, Knoxville, and the University of Chicago for helpful comments on earlier drafts. 1. Bernard Williams, “Realism and Moralism in Political Theory,” in his In the Beginning was the Deed (Princeton, N.J.: Princeton University Press, 2005), 1. 2. It is often said that Rawls tried to show that a well-ordered society would be stable for the right reasons. This is misleading insofar as it suggests that Rawls was concerned to show the persistence of basic of institutions. It would be more accurate to say that Rawls wanted to show that a well-ordered society would be “stably just,” as Joshua Cohen rightly points out in “Democratic Equality,” Ethics

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4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

legitimacy and the project of political liberalism 99 (1989): 743–744. The well-ordered society of A Theory of Justice will be stably just only when terms of cooperation adopted in the original position are stably adhered to—that is, when its conception of justice is stable. When speaking in my own voice, I shall therefore refer to the stability of justice as fairness rather than the stability of a well-ordered society. Burton Dreben, “On Rawls and Political Liberalism,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 316. Ibid., 345. Bruce Ackerman, “Political Liberalisms,” Journal of Philosophy 91, no. 7 (1994): 364–386, esp. 371–375. Dreben, “Rawls and Political Liberalism,” 316. David A. Reidy, “Reciprocity and Reasonable Disagreement: From Liberal to Democratic Legitimacy,” Philosophical Studies 132 (2007): 251. Simon Cabulea May, “Religious Democracy and the Liberal Principle of Legitimacy,” Philosophy and Public Affairs 37, no. 2 (2009): 148. Ibid., 155. David Estlund, “The Survival of Egalitarian Justice in John Rawls’s Political Liberalism,” Journal of Political Philosophy 4 (1996): 68–78, typescript pp. 4, 12. Reidy, “Reciprocity and Reasonable Disagreement,” 247. May, “Religious Democracy,” 155. Reidy, “Reciprocity and Reasonable Disagreement,” 247. Estlund, “Egalitarian Justice,” typescript pp. 6ff. Dreben, “Rawls and Political Liberalism,” 316. Reidy, “Reciprocity and Reasonable Disagreement,” 247. May, “Religious Democracy,” 148. Estlund, “Egalitarian Justice,” 68. I am grateful to John Simmons for urging me to discuss this variant. Charles Larmore, The Autonomy of Morality (Cambridge: Cambridge University Press, 2008), 147ff. Jeremy Waldron, “Theoretical Foundations of Liberalism,” Philosophical Quarterly 37 (1987): 127–150. Ronald Dworkin, “The Original Position,” in Reading Rawls, ed. Norman Daniels (Oxford: Basil Blackwell, 1975), 16–52. Larmore, Autonomy of Morality, 151ff. John Rawls, “Justice as Fairness: Political not Metaphysical,” Philosophy and Public Affairs 14 (1985): 236–237, n19. In my Why Political Liberalism: On John Rawls’s Political Turn (New York: Oxford University Press, 2010). Dreben, “Rawls and Political Liberalism,” 327. Simone Chambers, “The Politics of Equality: John Rawls on the Barricades,” Perspectives on Politics 4, no. 1 (2006): 81; see also her n10 and the accompanying text. See also Eric Gregory, Politics and the Order of Love (Chicago: University of Chicago Press, 2008), 71–72.

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28. Chambers, “Politics of Equality,” 81. 29. Estlund argues convincingly that even if Political Liberalism allows that a wellordered society need not satisfy the difference principle, this does not imply that Rawls came to think that the difference principle is not a demand of justice. According to Estlund, it merely implies that the Rawls of Political Liberalism distinguished what he continued to think that justice demands and what he came to think that legitimacy allows. 30. John Rawls, “Idea of an Overlapping Consensus,” Oxford Journal of Legal Studies 7 (1987): 1–25. 31. As Rawls observes in an important argument in A Theory of Justice, “the good of individuals” may be “up to them to decide”; “what is right,” by contrast, “is not a matter of mere preference” (TJ 490). 32. I am grateful to Ben Laurence for helpful conversation about this point. 33. Jeremy Waldon distinguishes these cases in Law and Disagreement (New York: Oxford University Press, 1999), 149ff. 34. Contrast Reidy, “Reciprocity and Reasonable Disagreement,” 247. 35. It is hard to see how the two principles bear at all on the policies to which the Quakers are said to object, so their objections must be independent of their view about the principles and therefore compatible with their acceptance of them. As for abortion: Rawls quite clearly implies that disagreements about abortion policy can arise from disagreement not about what fundamental political values are but about how those values are to be balanced (PL 243n32). 36. A. John Simmons, “Justification and Legitimacy,” in his Justification and Legitimacy: Essays on Rights and Obligations (Cambridge: Cambridge University Press, 2001), 145n48. 37. See ibid., 130. 38. See ibid., 145n48; also Allen Buchanan, “Recognitional Legitimacy and the State System,” Philosophy and Public Affairs 28 (1999): 57. 39. Dreben, “Rawls and Political Liberalism,” p. 327. 40. I do not think Rawls ever reconciled his expressed satisfaction with his late recognition that members of the well-ordered society would differ fundamentally about justice. While I think materials for a reconciliation can be found in Rawls’s writings, I cannot pursue the matter here. 41. I argue for this in my Why Political Liberalism. 42. Thus in “Reply to Habermas,” Rawls says that when an overlapping consensus obtains and is known to obtain: “citizens will judge (by their comprehensive view) that political values either outweigh or are normally (though not always) ordered prior to whatever nonpolitical values may conflict with them” (PL 392). 43. When the assurance problems are overcome, “the plan of life which [affirms one’s sense of justice] is his best reply to the similar plans of his associates” (TJ 497). In that case, the well-ordered society satisfies the condition of a Nash equilibrium. 44. Stephen Holmes, “The Gatekeeper: John Rawls and the Limits of Toleration,” New Republic (October 11, 1993): 39–47. See also Dreben, “Rawls and Political Liberalism,” 345.

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45. I believe Rawls thinks difficult cases can arise at the constitutional stage as well as at later stages because of what he says can raise the question of legitimacy. He says that question is raised by the imposition of power on “citizens some of whom may not accept the reasons widely said to justify the structure of political authority—the constitution—or when they do accept that structure, they may not regard as justified many of the statutes enacted by the legislature to which they are subject” (PL 136). 46. An interesting example is the organization “Not in Our Name” created by opponents of the Iraq war; see http://www.notinourname.net/. 47. In fact, the cases Rawls picks—of Catholics who oppose abortion and Quakers who oppose war (PL 393–394)—are presumably picked precisely because they illustrate this possibility. 48. See Stanley Hauerwas and William H. Willamon, Resident Aliens: Life in the Christian Colony (Abingdon Press, 1989). 49. Michael W. McConnell, “Review: Religion and the Search for a Principled Middle Ground on Abortion,” Michigan Law Review 92, no. 6 (1994): 1893–1909; see, in particular, 1893n3. 50. More plausibly: she takes the justice of intended outcomes to be necessary to justify the exercises of power that produced them. 51. See Dreben, “Rawls and Political Liberalism,” 327. 52. See PL 243n32, where Rawls says there is a possible, good-faith weighting of public reasons that would yield a ban on abortion. He does not say that the weighting is reasonable, but he also does not dismiss the questions those who oppose abortion raise about stability for the right reasons. 53. For the interpolation of “democratic,” see PL 428. 54. See also CP 594–595n57. 55. Cf. “at some point, the injustice of the outcomes of a legitimate democratic procedure corrupts its legitimacy” (PL 428). 56. At TJ 98, Rawls says, “There is, I believe, no political obligation, strictly speaking, for citizens generally.” 57. Neither the index of Political Liberalism nor that of Justice as Fairness includes entries for “obligation” or “political obligation”; the entries for these topics in the index of Rawls’s Collected Papers direct readers to papers that antedate A Theory of Justice. 58. Allen Buchanan and Robert O. Keohane impose this condition on legitimacy in their “The Legitimacy of Global Governance Institutions,” a memo prepared for the Conference on the Normative and Empirical Evaluation of Global Governance, Princeton University, February 16–18, 2006. The memo can be found at http://www.princeton.edu/~pcglobal/conferences/normative/papers /Session1_Buchanan_Keohane.pdf.

3 ISOLATING PUBLIC REASONS Jeremy Waldron

This chapter will consider the attractions of a position that runs roughly along the lines of Rawls’s account of public reason. It will then consider some reasons for steering clear of positions of this kind. My argument is not directed at John Rawls’s view as such. I want to describe and criticize a view of a certain kind, one that comes close to his at a number of points. But I am going to set up the idea of public reason in a way that is quite different from the way it is set up in Political Liberalism (see lecture 6 [212–254]). I hope not to get bogged down in fine issues of Rawls exegesis. If the difficulties of this kind of view are as I say they are, then that should have some effect on people’s readiness to subscribe to even a generous version of Rawls’s view. But Rawls’s own exposition has all sorts of conditions and qualifications built into it (see note 13, below). If there are details in his account that enable it to avoid the criticisms I make of views of this kind, so much the better. I still think that understanding these criticisms is important.

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1 Public reason is an attractive idea for a diverse modern community. It raises the possibility that citizens who find different kinds of religious, philosophical, and moral arguments compelling might nevertheless be able to settle on an organized array of reasons—a theory even—to justify their political and constitutional arrangements to one another. As such, it is a tentatively optimistic response to an otherwise bleak prospect. For it seems that the members of such a diverse citizenry will not be able to arrive at a common set of political and constitutional arrangements unless one group (perhaps the majority) is able to impose its preferences, values, and conceptions on the rest. If it has that power, maybe the majority will act collectively to set up institutions and laws that make sense in terms of values held by its own members. But these values will not necessarily be held by members of other groups in the society, and they may well be unintelligible to them. This prospect is not necessarily one of substantive oppression. The majority may institutionalize guarantees for individuals and minorities. But if guarantees are set up, they too will be justified in terms of values that may not resonate much beyond the powerful groups whose consent is necessary for their institution. So, for example, in a predominantly Christian country, constitutional guarantees may be enacted because a sufficiently large number of people in the majority group believe in the sacred dignity of the individual. Minority members may appreciate the upshot of this concern, but still the values that underpin it may not make much sense to them. If they were in charge, they might base their commitment to individual rights or minority guarantees on different premises and different conceptions altogether (Confucian conceptions or Islamic ones or secular Kantian principles, for example), and the protections that were justified on these premises might be shaped quite differently from those the majority has enacted. Minority members may regret the fact that there does not seem to be any common ground on which they can engage in argument about this with members of the majority. Since majorities and minorities would likely be talking past each other when they give voice to the values that matter to them, there will be no prospect of constitutional structures being established on the basis of reasons that have been found acceptable to all.

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The best explanation, then, of why the society’s arrangements are as they are will always be numbers and power rather than the upshot of civic deliberation. And the best anyone can hope for is that the majority’s values are enlightened and that they lead members of the majority to vote for laws and constitutional arrangements that happen to be good and just. The task of political philosophy, on this account, is to address itself to those who have majoritarian or other forms of political power in a community and to try to persuade them to pursue the implications of their values in humane and just rather than oppressive directions. That seems the best we can hope for in a religiously, philosophically, and morally diverse society. And that is the bleak prospect I was referring to.

2 Maybe there are alternatives to the bleak prospect I have described. One possible alternative draws on the fact that the division into majority and minorities is not always rigid and that we cannot assume that there is one group in society that always gets its way, always gets to build what it wants to build on the basis of reasons that appeal peculiarly to its members. Maybe majorities and minorities are fluid; maybe—as the American founders hoped—there will be so many different factions in the society that no one of them can be permanently dominant. So if a set of constitutional structures is set up, it might be the upshot of the successive formation of temporary majorities constituting themselves as majorities in a sort of log-rolling way. We are familiar with this from the way legislation is sometimes enacted in a large unwieldy polity like the United States. I and my friends give you some of the votes that you need in the legislature to enact a bill that seems sensible to you (on the basis of reasons that perhaps make little sense to me and my friends) in return for your giving us some of the votes that we need to enact a bill that seems sensible to us (though not on grounds that make much sense to you). Under these circumstances, the success of each enactment may depend on the legislature not committing itself to any official story about how the measure was justified. For there may be no story that convinces all of those whose support was necessary for its enactment. (Indeed, some of the supporters might be embarrassed to be associated with the reasons that other supporters have for favoring the measure.) Each of the persons

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involved may support the measures he votes for for his or her own reasons, and perhaps the only overlap among the different lines of reasoning espoused by the various supporters is their conclusion in the measure itself: “This should be enacted.” But this too is a fairly bleak prospect. That there is agreement only on the measure itself is likely to have consequences beyond the immediate political dynamics. It may make it more difficult to secure compliance with the enactment since citizens cannot be told what its official purpose is. It makes it more difficult for them to reconcile their own purposes to the purpose for which a measure that constrains them has been enacted, inasmuch as there is no canonical statement of the latter. Citizens may simply have to steel themselves to comply with laws enacted in this way without understanding them as having any particular point. Or, if they want to make sense of their compliance, they will have to make up a justificatory story for themselves, one that may or may not coincide with any of the reasons that actually led to its enactment. Not only that, but the justificatory diversity we have been discussing may make it harder for judges and others to interpret the provisions. Some jurists address interpretive difficulties by referring to the intention of the legislation they are considering. But if there is no official answer (no answer that can be given in the name of the whole community) to the question of why—for what reasons—the community as a whole adopted a given law, then this interpretive strategy becomes tendentious. The best that judges and others confronted with interpretive difficulties will be able to do is to pick on some reason that convinced one particular legislator—reasons that perhaps appeal to the interpreter—and base their interpretive arguments on that. So far I have used a simple model of log rolling to illustrate these points. Log rolling is distinguished by the fact that some people’s reasons for supporting a given measure may have nothing to do with anything that could count as a justification for it: I support your bill or your amendment simply because I expect you to support mine. The reasons held by me that are operative in my supporting your proposal are strategic reasons relative to first-order reasons that I recognize in connection with my own proposal, which is something quite different. However, similar points can also be drawn from cases where the different supporters do all think of themselves as having justifications that go directly to the measures they vote for. We sometimes talk of “an

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overlapping consensus”—a situation in which a set of individuals support a given proposal each for his or her own reasons, which reasons may not convince or make much sense to any of the others. In an overlapping consensus, each person’s reasons tend to support the proposal—rather than just supporting that person’s voting for it, as in the log-rolling case. They are all, as it were, first-order reasons about the merits of the proposal as each person sees it. Consider, for example, the different ways in which a ban on torture may be supported. In an overlapping consensus, you may support a ban on torture for religious reasons while I support it for Kantian reasons, but both our reasons are directed to justifying a ban on torture. In a log-rolling situation, by contrast, you may support the ban on torture for religious reasons whereas I support it because, even though I don’t care about torture, I want to elicit your support in return for some proposal about interstate commerce. Overlapping consensus looks like a more reasoned possibility. But although all the reasons in play are now oriented directly to the justification of the measure itself, there may still be no reason that can be cited in the political community at large as the justification or the official justification of the measure in question. The measure is, in Cass Sunstein’s words, “incompletely theorized.” It crosses the threshold of enactment with the community committed to it (by majority decision) but not to any particular theorized account of it. In a way Sunstein’s term is misleading. The issue is not that there hasn’t been enough theorizing or that such theorizing as there has been is “incomplete.” In a way, there has been too much theorizing: I have thoroughly theorized my support for the measure, and you have thoroughly theorized your support, but our respective lines of theorizing, rooted as they are in our particular moral, philosophical, and religious and commitments, are so diverse that they cannot be brought into relation with one another in an episode of theorization attributable to the society as a whole. As before, the overlapping consensus converges only on the practical conclusion: “This should be enacted.”

3 Perhaps there is a further possibility. In section 2, the term “this” in “This should be enacted” was understood as referring to a practical measure— for example, a statute comprising operative clauses such as a ban on

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torture, provisions for punishing acts of torture, and so on. Those operative provisions are what get supported in log rolling or what command support in overlapping consensus. But the “this” need not be so narrowly construed. Maybe the proponents can preface the operative provisions with a preamble embodying some reasons that support and make sense of the measure, and maybe they can find log-rolling support for the whole package—i.e., for the operative provisions plus the preamble. Or maybe it is the whole package— operative provisions plus preamble—that commands support in overlapping consensus. Getting support of either kind for the whole package may be a little more difficult than just getting support for the operative measures, but it is not impossible. So, consider again our torture example. A ban on torture may be supported by some people because they regard torture as an abomination in the eyes of God, by others because they see it as an inefficient way of eliciting information, and by still others because they see it as an affront to the Kantian dignity of human agents. So far what we have is an overlapping consensus upon the operative provisions of an antitorture statute. However, it may not be just the operative provisions that command this kind of support. The prohibition may be accompanied—as statements of rights often are—by a sort of preamble that represents a reason in favor of the prohibition that everyone can endorse. It may say something like: “Since torture is in most cases counterproductive in its consequences, torture by official agents is prohibited, and acts of torture shall be punished with a term of imprisonment.” Those who support the prohibition (for their own various reasons) might also be willing to sign on for the italicized preamble. Accordingly, it is possible that we can treat the italicized clause as a sort of public reason in favor of the prohibition, a reason that everyone can endorse, even though their ultimate reasons for supporting the measure are still much more diverse than this. Once support is secured for the whole package, it may seem we can overcome some of the difficulties that an incompletely theorized agreement posed for us earlier. Earlier I complained that the lack of an official justification might make eliciting compliance for a given measure more difficult or it might make it more difficult to resolve interpretive controversies. The existence of a preamble may help us with these difficulties. In the Laws, Plato thought that attaching a preamble (or “prelude”) to a legislative provision would add a helpful and respectful element of persuasion

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to the forcefulness of a law (rather like the explanation that a doctor might associate with the authoritative medical advice that he gives to a patient). And some jurists think that official preambles are better guides to the purpose of a law, so far as interpretation is concerned, than any attempt to elicit the particular reasoning of particular supporters from the legislative history. Judges can now try to argue for one interpretation of the text of the operative provisions over another interpretation by showing that the first interpretation better serves the purpose embodied in the preamble. Of course the existence of an agreed-upon preamble does not make the overall dissensus about reasons evaporate. For even if the whole package (operative provisions plus preamble) is the target of log rolling or overlapping consensus, it is still something that each person will support for reasons of his own, reasons he does not share with all the others. Though the preamble represents some one reason that all of the supporters can endorse, that one reason will be, for each person, only a fragment or subset of all the reasons with which he approaches the issue. Eventually (in section 6) we will have to consider the question of how tightly the reason represented in the agreed-upon preamble to a statute is tied to other reasons in the mind of a given individual, reasons he does not share with others. If the connection is very tight, then there is a danger that focusing on the reason contained in the preamble will involve “taking it out of context,” so far as its individual supporters are concerned, distorting its force by occluding its connections to other reasons that that individual recognizes but that other citizens do not share. These are obscure formulations; I will try to make them clearer in section 6.

4 But, first, let us see if we can take this idea of shared reasons even further. The preamble associated with a given measure that commands support across a wide swath of the society may be regarded as a public reason, inasmuch as all those who support the measure seem able to endorse it. It is public in the sense that the association of this line of reasoning with the law does not necessarily represent the forceful ascendancy of any particular religious, philosophical, or moral faction. But for public reason more generally we may require something more extensive. A moment ago, I mentioned Plato’s suggestion that each law should have a preamble. But in the Laws, Plato quickly developed that into a

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suggestion that there should be a preamble for the laws as a whole, not necessarily a separate one for each little provision. We can imagine a whole legal code being given a general preamble, and we can imagine that preamble along with its thousands of operative provisions commanding support as a package in overlapping consensus. Each person supports the preamble as well as all the operative provisions of the code, but each does so for his or her own reasons. Or we can imagine the extension of public reason happening inductively. If a number of measures are articulated in the operative-provisionsplus-preamble way that I have described, it may be worth considering whether the various preambles that each command support in overlapping consensus might add up to something like an official story about legal arrangements generally. True, none of the preambles will embody all the reasons that those who helped enact the measures had for giving their support, and whatever we can concoct out of the union (or overlap) of the various preambles will not reflect anything like the whole story that explains why any given bunch of political actors supported measures of this kind. So the official story may still not be attributable to anyone in particular. Nevertheless it may not be implausible to attribute it to “the law” or to the polity as a whole, as something that has emerged through iterations of public decision making. This, I think, starts to look rather like what John Rawls had in mind when he talked about public reason (PL l–lvii, 212ff.). True, John Rawls was not interested in log rolling. Nor was he interested in the constitution of political majorities. His account of public reason was oriented to the possibility of a broad consensus in a society that would transcend minorities and majorities. But nothing much hangs on that: mutatis mutandis, it is a view of the kind I have outlined. Rawls was interested in the prospect of overlapping consensus and its extension across the whole array of constitutional basics. He was interested in the possibility that, in a modern society characterized by religious, philosophical, and moral diversity, a set of liberal constitutional arrangements might be supported by different individuals and factions for different reasons, each from its own point of view. And he was interested above all in the possibility that those different lines of reasoning may converge not just on a list of constitutional essentials but also on a set of reasons that made public sense of them—reasons that each could endorse (along with the constitutional essentials), though still from his or her distinctive point of view.

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And this is where an account of the Rawlsian kind becomes ambitious. It is possible that this body of public reasons—understood in the way that I have described—might be rich and complicated enough to add up to a coherent political philosophy. There is no guarantee that this will be so. On the inductive model, the public reasons in question, adapted on an ad hoc basis to the exigencies of diversity in each case, may not disclose or add up to anything coherent, and even if they do it is likely to be rather superficial as a political philosophy. Still, something interesting may possibly emerge. And it is a valuable feature of Rawls’s later work that it recognizes something like this possibility: an overlapping consensus among (say) Christians and virtue theorists and Kantians need not just be a consensus on practical measures; it may also be a consensus on a range of reasons supporting a whole set of such practical measures and perhaps even a consensus on a coherent array of such reasons—adding up to a shared theory or ideology—supporting the whole variety of basic laws and constitutional essentials required for a modern society. So interesting is this prospect that Rawls seems to have thought it worthwhile for liberal theorists to explore in advance the possible shape of such a body of public reason, i.e., to explore in advance the possible shape of such public reasons for a modern liberal society without waiting for shared reasons to emerge from actual political decision making under conditions of overlapping consensus. The idea is that we should try to work out as a matter of political philosophy a theory of justice that might operate as the focus of overlapping consensus on basic laws and constitutional essentials for a society characterized by religious, philosophical, and moral diversity (PL xli). This is an interesting and intriguing exercise. It may be a useful thought experiment, and it may be also a way of cultivating a consensus on reasons, by encouraging us to develop theories of our basic laws and institutions that are convincing and can command consent across the board rather than being rooted in any particular conception. That is the attraction of the idea of public reason as I understand it.

5 It is tempting to say that this is all that liberal political philosophy can amount to under the conditions of modern society. Liberals are committed to respect for and sensitivity to the kind of diversity we find in a modern society. This—it might be thought—must affect the way they do

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political philosophy. For them, the task of political philosophy is to figure out what can be said for liberal laws and institutions under the constraint that what is said must be able to operate as public reason in the manner just described. It must be able to command support in overlapping consensus from a variety of diverse viewpoints, and it must add up to a coherent and interesting body of thought. Now, maybe it is question begging to say that the task of liberal political philosophy is to adduce this kind of support for liberal laws and institutions, as though there were no doubt about what these were. It might be better to say that (according to views of the kind we are considering) liberal political philosophy aims to settle controversies about what laws and institutions should exist in a liberal polity by seeing which of the alternatives is likely to be better associated with an array of convincing public reasons or is likely to be associated with a better array of convincing public reasons, judged by criteria that themselves do not depart from the arena of public reason as set out above. But, whichever way we phrase it, I do not think that this can be all that political philosophy amounts to because the model assumes that people support liberal laws and institutions for a variety of reasons, many of which will not be represented in the public reason associated with these laws and institutions. As Rawls acknowledges, “not all reasons are public reasons” (PL 213). In our torture example, we assumed that some of the reasons citizens have for supporting a ban on torture are Christian reasons and that some of the reasons are Kantian reasons. These considerations will not be represented in public reason because they are not as widely shared in the liberal polity as public reason would require them to be. But they are still there, presenting themselves in the moral and political consciousness of certain citizens as reasons for supporting these laws and institutions. Our model assumes that people will have nonpublic reasons for supporting liberal institutions. Moreover, nothing should imply that having reasons of this sort is disreputable by liberal standards. Quite the contrary: it is out of respect for the diverse views that people in fact hold that we are driven to look for alternatives simply to imposing one set of these (e.g., those of the majority) (LP 155). Indeed, the idea of overlapping consensus assumes that we respect people’s nonpublic reasons—for although the overlapping consensus is a consensus on reasons, it is not a consensus on all the reasons that there are, and that there are known to be, for the laws and institutions in question. Each person’s support for the public reasons is known not to exhaust her own list of reasons for

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supporting the laws and institutions that are rationalized in this way. Her own reasons may add up to a comprehensive theory that can never be represented as the object of overlapping consensus. But the theory may still make sense, or it may seem an important question—at the very least to the citizen who holds it—whether it is a coherent and sensible conception. At its best, the attention that the citizen devotes to this question must be called political philosophy too. What else could it possibly be called? The same point can be made from a different direction. Historically, many reasons that do not satisfy the test of public reason have been brought forward in favor of liberal laws and institutions by thinkers in the liberal canon. Many are still being brought forward. One thinks of Locke’s Christian arguments for toleration or Kant’s Kantian arguments for equal freedom or Mill’s perfectionist arguments for individual autonomy. For recent times, John Rawls cited Joseph Raz’s “ethical liberalism” as an example also (PL 135n). It would be perverse to say that these must be expunged from the range of liberal reasons just because they appeal to ideas that are not necessarily shared by everyone. None of this is to disparage the public reason enterprise as I have described it. But it reinforces the point that even on its own account, public reason cannot give a complete account of the reasons that one would expect to see held and the reasoning that one would expect to see pursued by good-faith participants in and supporters of a liberal public order. In any case, the justification of liberal laws and institutions may be regarded in political philosophy as an objective matter, something that is not just a matter of what reasons can command what support in a given set of social and political circumstances. What can and cannot command support is one question. What is an objective justification for a given rule is another. Both may be important, but they are independent of each other (unless “justification” is rigged to mean something like “justification in public reason”). Maybe the objective truth about torture is that it is absolutely wrong as a desecration of the human person and that it should be forbidden by law; this may be the truth even if large numbers of citizens in a diverse society do not have the moral, philosophical, or religious wherewithal to arrive at it. In section 7 we shall examine the view that citizens should regard themselves as constrained not to insist on voicing the whole truth about social arrangements in their public debates with one another when the whole truth (as they see it) is not intelligible to everyone. But even if such a constraint is justified, the idea of there being

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such a whole truth does not evaporate. Whether it is accessible to everyone or not, it ought to be someone’s job to figure out whether torture is objectively wrong in all circumstances and why, and this is a task that will involve assessing all of the reasons that might be cited for and against the practice of torture, whether or not these reasons are widely shared, whether or not they can be presented as public reasons. It is hard to see that this is not a task for political philosophers. (Again, if it is not their task, whose is it?)

6 I want to turn now to look in more detail at the relation between public reason, as I have described it, and the array of reasons that individuals bring to their own evaluation of laws and institutions. I said at the end of section 3 that there might be a problem about public reason taking shared reasons out of context. The problem arises as follows. We know that public reasons represent a fragment or subset of the reasons that various people have in regard to a given law or institution. So long as we think of justificatory reasons in a simple accumulative way, as discrete independent things that might be said in favor of a given measure, this need not trouble us. We often think about reasons like this. We say: there is this to be said in favor of a given measure and there is also that to be said in favor of it, and we can consider each of these on its own. On this way of thinking about reasons, detaching one reason for a given measure from a longer list of reasons in favor of it, and treating that one reason as a public reason, does not do violence to anyone’s view. For each has a list of reasons that includes the reason that is shared with others, and the identification of a public reason is simply a matter of putting a circle around one item from that list. And if this is true in regard to one public reason in regard to one particular law, it may be true of public reason generally across a whole set of laws and constitutional arrangements. The difficulty comes when we see each individual’s reasons not as a list but as a complex and structured array. Some examples will illustrate. In our torture example, we imagined that we could extract the following reason from everyone’s individual list of reasons and parade it as a public reason for a ban on torture: (T ): Torture is in most cases counterproductive in its consequences.

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This, we conjecture, could be supported by those who opposed torture on religious grounds, by those who opposed it in the name of Kantian dignity, and by those who evaluated all laws and institutions in terms of their efficiency. Now, so far as the third of these groups is concerned, there is no doubt that T can command their full-throated support. Members of the first two groups no doubt also agree with T, but for them it will hardly capture what is the essence of the matter. For them, the key thing about torture is that it is wrong whatever the consequences, as an affront to human dignity or as a desecration of the image of God. It is true that, deontologists, even religious ones, do not deny the interest of consequential calculations. They may even hold principles of benevolence that require such calculations, and so the claim about torture being unproductive is not something they will necessarily dismiss as uninteresting; they will acknowledge its pro tanto importance. But they will not see it as decisive, and they may want to dissent from the pragmatic implication of T that torture might be permissible if it were productive of different consequences. In their ethical system, the principle of benevolence that underpins their acknowledgment of the importance of assessing the consequences of torture is ranked below constraining principles that flatly prohibit torture. But if their assent to the consequentialist point is abstracted from its context in such a ranked array of principles, then—to say the least—a misleading impression will be created. The point can be generalized. Given that most deontologists are committed generally to a principle of benevolence (albeit as one principle among others), they will always be willing to acknowledge some of the reasons that consequentialists have for supporting each of a whole array of laws and institutions. After all, it is a mistake to think that consequentialists and deontologists disagree about everything or even most things: on a great many practical matters, their views converge; the impression of constant disagreement is created by the hypothetical examples that moral philosophers deploy for educational reasons specifically to highlight the theoretical differences between them. However, that practical convergence, and the fact that deontologists recognize, as one principle among others, a principle that may have roughly the shape of the consequentialist’s master principle, may generate public reasons that are pervasively consequentialist. In area after area, the deontologist may agree with the consequentialist that a given law deserves support because of its efficiency or other reasons of benevolence. A law banning torture, a law banning slavery, a law requiring some redistribution

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of income, a law upholding private property—all these may command support on all sides because of their consequences, not just from consequentialists but from deontologists who recognize a consequentially demanding principle of benevolence as one principle among others. However, at the level of public reason, the deontologist may be unable to convey any sense of what he or she thinks is the limited significance of these reasons. On this point she may be tongue-tied. To convey her view of the limited significance of consequential reasons, she would have to indicate the importance for her of moral or religious side constraints and the reasoning necessary to convey that is not something that fullblooded consequentialists can share in. If, as a result, the impression is given that consequential assessment is the only game in town for the purposes of public reason, then this will amount to a misrepresentation of the state of opinion in society generally. Problems of this kind may erupt across the board. Utilitarians may oppose slavery on account of the cruelty that the system involves. Religious deontologists may oppose it on account of the transcendent status of each human being. They may be inclined to say, as Justice John McLean said in dissent in the Dred Scott case, that the person enslaved cannot be treated as a mere chattel—“He bears the impress of his Maker, and is  .  .  . destined to an endless existence”—but it may be inappropriate to say this in a public-reason context. None of this means that the deontologists disagree with the utilitarians about cruelty. They will agree about the wrongness of inflicting any unnecessary suffering on a sentient being. But if we seize on this and treat it as our plateau of agreement for the purposes of public reason—since the deontologist and the utilitarian agree about cruelty but disagree about the slave’s bearing the impress of his maker, we cite the element of cruelty as the public basis of the ban on slavery—then once again we distort the deontologist’s view. For him there is all the difference in the world between cruelty imposed on a sentient nonhuman being and cruelty imposed on a human. Both may be wrong, but the second has a sort of significance that perhaps cannot be fathomed in the bland statement of the “shared” public reason. The example helps us see that reasons often work as a system, and one cannot simply detach one reason for the purpose of identifying a lowest common denominator as the content of public reason. The reasons that a citizen has for supporting a law or an institution may have internal relations with one another and, from a given citizen’s point of view, the best account that can be provided for why a given measure should

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be supported will take into account the internal structuring of the whole array of reasons that the citizen brings to the matter. But if there are internal relations holding between a reason that the citizen shares with others and some reason that she does not share with others, then abstracting the first reason out as something that all citizens share misrepresents what is to be said in favor of the measure in this diverse society. I think this is particularly likely to be the case with religious reasons. Nonbelievers often seem to think that religious reasons amount to little more than discrete commandments presented as a list: “Thou shalt do this” and “Thou shalt not do that.” If that is how they were structured, there would be little difficulty abstracting a set of prescriptions—“Feed the hungry,” “Don’t kill anybody”—that could be entertained, and in principle shared, apart from the assumption that they represent the commands of a god. But religious reasons are often grounded in a theological anthropology and a deep and complex sense of relatedness between God and humanity to which we cannot do justice in a simple prescription. It may not always be easy to tell which reasons are connected with others in this way. Ordinary citizens may just feel an uneasy sense that one of their reasons is being “taken out of context” when it is isolated as a shared public reason in support of some law or institution. I suppose any further analysis depends on political psychology. But in addition, there is surely a role for political philosophy in exploring the relations inherent in complex and structured arrays of reasons in favor of liberal measures. The examples I have given are pretty simple as illustrations of this. But it is not hard to see how the point applies in political philosophy generally. Arguments in political philosophy are quite complicated, and often various considerations enter into arguments in ways that depend on their relation with other considerations, and those relations are seldom simple. I do not mean to deny that public reason as I have described it has its own complexities. If Rawls’s own theory, as presented in chapter 6 of Political Liberalism, fulfills the requirements of public reason, that is proof that public reason can be structured in quite complicated ways. I do actually think public reason is often shallow, but my argument in this essay does not depend on any contrast between the simplicity of public reason and the complexity of private reasoning. Even if we can distill a complex structure of public reasons out of the diverse positions that people hold, the way in which that incorporates reasons attributable to particular citizens may still misrepresent the particular complexity of the particular citizen’s view.

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7 The most controversial aspect of Rawls’s theory of public reason is his suggestion that voicing justificatory arguments outside the framework of public reason is not a civil or respectful way of dealing with one’s fellow citizens. He says that “in discussing constitutional essentials and matters of basic justice we are not to appeal to comprehensive religious or philosophical doctrines—to what we as individuals or members of associations see as the whole truth” (PL 224–225). Though individual citizens may think about laws and institutions in all sorts of ways, they have an obligation to confine their participation in public deliberation and public decision making to terms that all their fellow citizens can accept. I will call this the “public reason constraint.” (The phrase is mine, not Rawls’s.) The public reason constraint is a common theme in views of this kind. I will not go into the detail of the supposed applicability of the public reason constraint. Rawls says that courts accept it, he thinks citizens should penalize legislators who fail to respect the constraint of public reason, and he thinks citizens themselves should be constrained in this way in the reasons they bring to their voting, at least on constitutional essentials (PL 215–216, 231–240). Others may apply the constraint in a more relaxed way. I will assume that the constraint is supposed to operate at least as a limit on what may be said publicly in formal contributions to political deliberation that are intended to influence formal democratic decision making. I do not think anyone imagines that this should be a legal constraint; the idea is that the constraint forms part of the ethics of office and citizenship. What I mostly want to do is to consider the very idea of such a constraint and the effect it might have on citizens as reasoners. We have already noted that only a subset or fragment of the reasons that a citizen has for supporting a given measure will count as public reasons, shareable with those who differ from them in moral, religious, or philosophical outlook. Limiting a citizen’s deliberative contributions to public reasons involves suppressing her expression of the whole truth (as she sees it) concerning the matter under discussion. In his discussion of the constraint, Rawls imagines someone saying, “Surely, the most fundamental questions should be settled by appealing to the most important truths” (PL 216). As a matter of practical rationality, shouldn’t this be the spirit in which citizens talk with one another about these questions?

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Rawls confronts the criticism head on: “The zeal to embody the whole truth in politics is incompatible with an idea of public reason that belongs with democratic citizenship” (LP 132–133). Different orientations to truth, he says, are appropriate for different circumstances (see PL 221). In political decision making, we have to consider, along with truth and rationality, factors relating to legitimacy, reasonableness, and mutual respect. Truth or no truth, we have an obligation to engage with one another in the public square in a way that is civil and mutually respectful—partly as a matter of respect for persons and partly on account of what is at stake in the debate. Anything I offer as a contribution in public debate about measures that are going to end applying coercively to us all I must offer as something for others to grasp, consider, and engage with. But since I know that we have different moral, religious, and philosophical conceptions, offering something that draws deeply on my own conception is not offering something that all others can grasp, consider, and engage with. I might talk about God or the immortal soul or whatever, but the secular individuals I am addressing, with whom I am bound together in common citizenship, may not be able to make any sense of this talk. Accordingly, if my view prevails in the public decision making, it will not be because the others are convinced or even had a real opportunity to be convinced. My view’s prevailing will be simply a fact about my ascendancy, not about my reason’s prevailing in reasoned debate. And if I am conscious of this, then I am being uncivil in putting forward reasons of this sort, at least where fundamental coercive measures are concerned. I will say more about this matter of civility in a moment. Right now, though, we should notice that the argument from civility does not make the concern about truth and rationality go away. By limiting the reasons that are invoked and by truncating the relations between reasons of different kinds, the rationality of our decision making may, for all its civility and mutual respectfulness, be undermined. And our concern about that is not in the least allayed by noticing that it is the cost of upholding civility. In fact, that may put it too mildly. We are not just considering the exclusion of data from a scientific discussion or the exclusion of relevant material from a literary debate. We are considering the possible exclusion from practical deliberation of reasons that are normatively significant. Reasons are normatively significant in practical reasoning because they point us to things that matter, and often the cost of not considering them is a moral cost, not just a rationality cost. Most normatively significant reasons are significant because they take account of the way a given

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decision may affect people. So if they are excluded, then interests of real people may be sold short. I emphasize this because it is tempting to say that the constraint of public reason is irksome to the speaker inasmuch as it limits what she is able to say; there is something she wants to bring up, but it is deemed inappropriate. The constraint leaves her tongue-tied; it requires her to dissemble about the true grounds of her beliefs. So the complaint seems to be that this is unfair to any citizen who believes strongly in the kinds of reasons that are excluded. But that is not right. If the reasons that are excluded really are morally significant reasons, then the complaint about their exclusion ought to be a complaint on behalf of the interests and considerations that the reasons draw attention to. And those may well be interests of people other than or in addition to those of the speaker. Let me illustrate with a couple of examples. In Dred Scott v. Sanford, Justice McLean thought it important to mention in his dissenting opinion that an African American man should be regarded as a person entitled to justice because “he bears the impress of his Maker . . . and he is destined to an endless existence.” Justice McLean violated the constraint of public reason; had he complied with it, he would not have been able to talk in these terms (or in any way that could count as a full translation of these terms). The insistence that considerations like this should be excluded from public reason may seem an affront to Justice McLean. But the real affront would have been to Mr. Scott, the basis of whose ethical and metaphysical status was to be suppressed in a decision about his citizenship. If this reason was not mentioned, then it would be more likely that Scott would continue to be treated as a chattel. And that is the basis of the complaint in this case—that it may lead us to treat Mr. Scott badly, not that it leads us to treat Justice McLean badly. Or consider the case of torture, which we used earlier as a paradigm. In recent years it has been suggested that terrorist suspects should be tortured when this would lead to the saving of large numbers of lives (e.g., when it would save the lives of those threatened in a terrorist attack like the attack that took place in Manhattan on September 11, 2001). How could anyone reasonably object to the use of torture to save thousands of lives in a case like this? To object one would have to be a moral absolutist, and not just an ordinary moral absolutist but one willing to maintain his absolutes even in the face of what Robert Nozick called “catastrophic moral horror.” Now, such absolutism often manifests itself in association with strong religious convictions. For example, in the travaux préparatoires for the European Convention on Human Rights in 1949, a United Kingdom

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delegate, Seymour Cocks, said this: “I say that to take the straight beautiful bodies of men and women and to maim and mutilate them by torture is a crime against high heaven and the holy spirit of man. I say it is a sin against the Holy Ghost for which there is no forgiveness.” Obviously Cock’s argument would be excluded by a public constraint along the lines we are considering. I am sure he would feel that making his case in favor of an absolute ban on torture would much more difficult if he could not appeal to his fellow delegates in these terms. And he would believe, perhaps quite rightly, that if the considerations he mentioned were excluded, the reasons that are stacked up in favor of torture, in ticking-bomb cases for example, would seem all too easily capable of justifying it. Without the religious reasons, the case against torturing the terrorist—the case that must be opposed in our reasoning to the saving of hundreds or thousands of lives—consists in some limp but universally accessible rhetoric about personhood and the suspect’s “dignity.” And that seems incapable both of conveying the force of a religiously based absolute and of outweighing the very pressing considerations adduced or imagined on the other side. So there might be a real moral loss. But once again, the loss that matters is not the loss to Seymour Cocks; it is the loss to the terrorist suspects who might be maltreated because the most pressing reasons for not torturing them were not able to be presented in civil deliberation. Of course, one might dispute the admissibility of reasons couched in these terms because one did not accept the premises on which they were founded: one might think that there is no Holy Ghost to sin against in actions like torture or that the idea of the image of God, appealed to by Justice McLean, makes no sense. But the public-reason constraint is not about truth or falsity. Comprehensive ethical, philosophical, or religious doctrines are not excluded from public reason because they are wrong or false. No doubt some are. But we do not need any special constraint of public reason to justify these; basic rationality copes with that. The constraint on public reason is supposed to apply to comprehensive ethical, philosophical, or religious ideas that—for anyone that says so—may be true and important. And if they are true and important, that means there is a serious moral cost in excluding them from deliberation about public action.

8 I said in the middle of section 7 that the argument about civility does not cancel out the concern about the effects of the public-reason constraint

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on truth and rationality. But I have to acknowledge that the reverse is true also. Even if there is a moral cost involved in excluding reasons that may be true and important, there is still something disrespectful about introducing into public debate considerations that one’s audience can make no sense of. Is there anything that can be said in response to this concern? One response is for each side to point to the civility of the other. Citizens need to be able to convey their nonshared reasons to each other not only as an exercise in deliberative persuasion but so that they can give one another a sense—even if it is a limited sense—of the context in which the shared reasons operate for them. After all, we have an obligation not to mislead one another. People have a right and perhaps a duty to explain themselves to their fellow citizens—to do the best they can to put into words a sense of why they feel so strongly about a given policy or proposal. They may do this not in any way that is intended to be persuasive but simply to convey to their fellow citizens, in case they are interested, the sort of view that they hold. Interestingly, John Rawls acknowledged this in The Law of Peoples. He mentioned forms of discourse that do not “express[] a form of public reasoning. One is declaration: here we each declare our own comprehensive doctrine, religious or nonreligious. This we do not expect others to share” (LP 155). Such declarations may still fulfill a public function because fellow citizens hearing them may say, “Oh, you feel that strongly about it. I hadn’t realized that, for you, the matter is connected with values or premises that profound.” And this may modify how others appropriately respond to the position in civic deliberation. Once we start off down this line, other vistas of civility open up. No doubt it is, as Rawls and others have argued, uncivil to offer contributions to public deliberation that are completely unintelligible to one’s fellow citizens. But intelligibility is a matter of degree. Some defenders of the public-reason constraint have suggested that unless I can communicate to another all that I have when I entertain a given reason, then it is not appropriate to put forward that reason in public debate. But I can hardly ever do that. On the one hand, communication is always imperfect even in cases that strike us as paradigms of mutual intelligibility. And on the other hand, the cases most commonly cited as cases of mutual unintelligibility are seldom completely so. Modern atheists, for example, have an idea of what Justice McLean meant and the point he was trying to convey when he said that Dred Scott was not chattel but a being who bore the impress of his maker and was destined to an endless existence. They may not have a perfect idea (indeed nor may the speaker, for religious

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conceptions are often challenging even to those who give voice to them), and they may not accept or agree with whatever they can understand of it. But living in a culture which remains semisaturated with Judeo-Christian texts, images, and notions, they will have some grasp of what is meant. So what we should be thinking about is not all-or-nothing intelligibility but what civility requires of us in circumstances where a modicum or a certain extent of understanding is available though something short of complete intelligibility. Not only that, but we must be careful not to underestimate people’s ability to grapple with unfamiliar views that start out with only a precarious foothold in their own beliefs or experience. Arguments for the public-reason constraint should not assume that people can understand or grapple with a doctrine only if in some sense they already share it or share the conceptual framework that it presupposes. I have argued against that elsewhere. The difficulties of intercultural or religious-secular dialogue are often exaggerated when we talk about the incommensurability of cultural frameworks and the impossibility of conversation without a common conceptual scheme. In fact conversation between members of different cultural and religious communities is seldom a dialogue of the deaf, though of course there is inevitable tension and misunderstanding. Humans are enormously curious about one another’s ideas and reasons, and, when they want to be, they are resourceful in listening to and trying to learn from one another across what appear to be insurmountable barriers of cultural comprehensibility, often far beyond what philosophers and theorists of culture give them credit for. We philosophers tend to think that deliberation requires a framework of common concepts and understandings; we are less embarrassed than we ought to be when, time and again, various seafarers and traders and migrants prove us wrong. In any case, the issue that we are dealing with in our discussion of public reason is not incommensurability between cultures but degrees of intelligibility within a given culture—for example, within the multifaceted and conflicted culture of modern America. We are asking whether believers and nonbelievers in this country have enough in common to be able to understand one another to a certain extent. And here it seems to me that the opponents of religious interventions simply underestimate the prospects for mutual intelligibility. Sticking with the theme of religious versus secular reasons, it has to be conceded that among those who maintain a secular or atheist posture, a good number have had, but have since renounced, religious belief, so that some of the ideas introduced by

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their religious fellow citizens will hardly be alien, even though they do not want to be thought of now as capable of understanding them. For those who have had no religious upbringing or have completely forgotten what they learned, there are immense libraries of books and cultural objects in our civilization that resonate with this: our museums are full of them; the shelves of our bookstores groan under their weight; many of our great universities have faculties of theology, religious study, or divinity; and most secular people have religious friends. Of course this stuff is not easy; theology is a difficult subject. It may seem unreasonable to require people to go away and patiently study it in order to understand the political interventions of their religious fellow citizens. But remember where we are in the argument. We are dealing with the objection that there is something uncivil about speaking to one’s fellow citizens in terms they cannot possibly understand. It is the “cannot possibly” that I am contesting here. That only a few are willing to take on the task of understanding does not mean that the demand for understanding is uncivil. The issue is, in my view, is not the “can’t” of unintelligibility; it is the “won’t” of intellectual refusal. Many people have resolved to have nothing to do with religious thought, and, standing firm on that resolution, they demand to be spoken to in only secular terms. Of course they do not do this gratuitously. They do it because they believe that all this stuff about the Holy Ghost and the image of God is superstitious nonsense. They think they have good reason to dismiss it and to refuse any further study to try to make sense of it. They would similarly refuse any suggestion that they should read the works of L. Ron Hubbard or the literature of Major Douglas’s Social Credit Party. In principle there is nothing wrong with this attitude. We cannot engage with and evaluate everything. We tune out material we think is useless, and we pay attention to what we think may be important. That is fine. But the fact that one is inclined to block out what Seymour Cocks says about torture or what Justice McLean says about slavery is hardly a reason for denying the civility of their saying it.

9 The problem with both the idea of public reason and the idea of a constraint of public reason is that reasons are not always easily detachable from one another. The search for common ground in a modern pluralistic

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society is of course an honorable one. It is, as I said at the outset, a modestly optimistic response to an otherwise bleak prospect. But the bleakness of the prospect—of persons with different sets of beliefs running into a wall of mutual unintelligibility as they attempt to reason together—can be exaggerated, and so can the fairness and the neutrality of the strategies associated with public reason. The search for common ground involves the identification and isolation of particular items in the set of reasons that one person brings to a public issue and their detachment and the matching of them with items in the set of reasons that another person brings to the same public issue. That works fine if, in each case, the set of reasons that the person brings to the public issue is a simple aggregation of distinct items. Maybe certain consequentialist views are like that: that a given proposal would advance this interest is one thing, that it would advance that other interest is another thing, and so on. But this is not true of all orientations to value and to right. In rights-based theories and deontological theories, reasons often work as a system and take their shape and importance from their context, from other reasons in their vicinity in a given person’s package of reasons. Political philosophy should not shy away from exploring these connections. It should certainly not brush them aside in the interest of finding reasons that may—if no one examines them closely enough—be identified as shared reasons and therefore as potentially public reasons. As political philosophers, it is our job to examine as closely and as deeply as we can the reasons that apply to the issues we face. There are people whose responsibility it is to marshal reasons as soundbites and to blur any deeper complexity that might be associated with them. But that is not the mission of political philosophy.

notes 1.

Alexander Hamilton, John Jay, and James Madison, The Federalist, ed. George Carey and James McClellan (Indianapolis, Ind.: Liberty Fund, 2001), 42–49 (Federalist no. 10). 2. See, for example, Andrei Marmor, Interpretation and Legal Theory (Oxford: Oxford University Press, 1992), 155ff. 3. The use of the term is best known from Rawls, Political Liberalism, 133ff. 4. See Cass Sunstein, “Incompletely Theorized Agreements,” Harvard Law Review 108 (1995): 1733. 5. Plato, The Laws, ed. Thomas Pangle (Chicago: University of Chicago Press, 1980), 110 (723a).

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6. See, e.g., Kent Greenawalt, Legislation: Statutory Interpretation: Twenty Questions (Foundation Press, 1999), 48, 149n. 7. Plato, The Laws, 111 (723e). 8. See John Locke, A Letter Concerning Toleration, ed. Patrick Romanell (New Jersey: Prentice Hall, 1950), 13–14; Immanuel Kant, The Metaphysics of Morals, ed. Mary Gregor (Cambridge: Cambridge University Press, 1996), 376–390 (6:221–233); John Stuart Mill, On Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 2008), chap. 3, 62–82. 9. Rawls is here referring to Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986). 10. Dred Scott v. Sandford, 60 U.S. 393 (1856), 550, McLean J., dissenting. 11. See the discussion in Jeremy Waldron, “Public Reason and ‘Justification’ in the Courtroom,” Journal of Law, Philosophy, and Culture 1 (2007): esp. 113–115. 12. True, this may be less of a concern if she can satisfy the constraints of what Rawls calls “wide public reason” by offering a translatable version of her comprehensive views—a version that is open in due course to translation into the language of public reason—or a version that can be replaced in due course by reasons that satisfy the constraints of public reason. See, e.g., PL li–lii: this is one of the details of the Rawls’s conception that I said at the outset that I would ignore. Although this seems like a concession on Rawls’s part, it does not draw the sting of his doctrine of public reason. For not all comprehensive reasons satisfy these conditions: in many cases, a considerable amount of the force and content of the reason might be lost in the sort of translation or replacement that this proviso envisages. 13. Dred Scott v. Sandford, 60 U.S. 393 (1856), 550, McLean J., dissenting. 14. What follows is adapted from Jeremy Waldron, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review 105 (2005): 1681; reprinted in Jeremy Waldron, Torture, Terror, and Trade-offs (Oxford: Oxford University Press, 2010). 15. Alan Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (New Haven, Conn.: Yale University Press, 2002), 477, asks: “What if on September 11 law enforcement officials had arrested terrorists boarding one of the planes and learned that other planes, then airborne, were heading towards unknown occupied buildings?” Professor Dershowitz has insisted subsequently that he was only raising this for discussion; he says he was not proposing that terrorist suspects be tortured in these circumstances. But others were: see, e.g., Charles Krauthammer, “Torture? No, Except . . .” Washington Post (May 1, 2009). 16. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), 30n: “The question of whether these side constraints are absolute, or whether they may be violated in order to avoid catastrophic moral horror, and if the latter, what the resulting structure might look like, is one I hope largely to avoid.” 17. The Council of Europe, Collected Edition of the Travaux Préparatoires of the European Convention on Human Rights (August–November 1949) (The Hague: Martinus Nijhoff, 1975), 2:36–40.

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18. See also Waldron, “Public Reason and ‘Justification’ in the Courtroom,” 109. 19. Thomas Nagel, “Moral Conflict and Political Legitimacy,” Philosophy and Public Affairs 16 (1987): 232: “It must be possible to present to others the basis of your own beliefs, so that once you have done so, they have what you have, and can arrive at a judgment on the same basis. That is not possible if part of the source of your conviction is personal faith or revelation—because to report your faith or revelation to someone else is not to give him what you have, as you do when you show him your evidence or give him your arguments.” 20. See Jeremy Waldron, “Tribalism and the Myth of the Framework,” in Karl Popper: Critical Appraisals, ed. Philip Catton and Graham Macdonald (London: Routledge, 2004); and Jeremy Waldron, “Cultural Identity and Civic Responsibility,” in Citizenship in Diverse Societies, ed. Will Kymlicka and Wayne Norman (Oxford: Oxford University Press, 2000). 21. Some of this argument has been adapted from Jeremy Waldron, “Two-Way Translation: The Ethics of Engaging with Religious Contributions in Public Deliberation,” Mercer Law Review 63 (2012): esp. 856–861.

4 THE CAPABILITIES APPROACH AND POLITICAL LIBERALISM Thom Brooks

John Rawls argues that A Theory of Justice suffers from a “serious problem”: the problem of political stability (PL xviii; see xxvii, 3–4). His theory failed to account for the reality that citizens are deeply divided by reasonable and incompatible religious, philosophical, and moral comprehensive doctrines. This fact of reasonable pluralism may pose a threat to political stability over time and requires a solution. Rawls proposes the idea of an overlapping consensus among incompatible comprehensive doctrines through the use of public reasons in his later Political Liberalism. Rawls’s proposed solution to the problem of political stability has received much criticism. Some, such as Kurt Baier, Brian Barry, George Klosko, and Edward McClennen, argue that an overlapping consensus is relatively unnecessary. Rawls should have acknowledged existing resources in his account that might secure political stability over time without major changes to his original views about justice. Others, including Kent Greenawalt, Michael Sandel, Leif Wenar, and Iris Marion Young, believe that an overlapping consensus is too fragile to secure political stability. Rawls correctly identifies a major problem for his original account, but he fails to provide a satisfactory solution. I believe these objections rest on a mistake easily overlooked. Each objection claims that, for Rawls, the possibility of future political stability

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is to be guaranteed by an overlapping consensus alone. This perspective fails to recognize the central importance of the social minimum in securing political stability. There is, in fact, more resources to secure political stability than Rawls or his critics have recognized. My discussion will begin with a brief explanation of why the problem of political stability raises an important challenge to Rawls’s views on justice and why he argues for an overlapping consensus as a solution to it. I will next consider the more important objections to Rawls’s solution and why these fail. I will argue that the social minimum might better support political stability if it is broadly understood in terms of the capabilities approach. This approach is compatible with Rawls’s political liberalism, and it provides a more robust understanding of a just social minimum. Political stability does not rely upon an overlapping consensus alone— and it may be better secured where the capabilities approach plays a more central role. Therefore, Rawls does provide an illuminating solution to the problem of political stability that is more compelling if we incorporate the capabilities approach into political liberalism.

POLITICAL LIBERALISM AND THE PROBLEM OF STABILITY Rawls argues that his theory of justice is threatened by the “serious problem” of political stability over time (PL xviii; see JF xv–xviii; PL xl, xlii, 141). He claims that A Theory of Justice rests on an “unrealistic idea of a well-ordered society” (PL xviii). This is because it fails to recognize that citizens will share different reasonable comprehensive religious, philosophical, and moral doctrines that may be incompatible. This “fact of reasonable pluralism” about “reasonable comprehensive doctrines” is neither exceptional nor rare but rather a fact about democratic societies. Reasonable pluralism poses a potential threat to political stability: if free and equal citizens in any well-ordered society have a reasonable disagreement about preferences for different and opposing comprehensive doctrines, then there is a problem that this disagreement may undermine political stability over time. There is the additional problem of how political stability may be possible without denying the equality of citizens. Political Liberalism is presented as a “major change” with “important differences” from his earlier views in A Theory of Justice (PL xvii). Rawls revises his views to address a specific issue:

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The problem of political liberalism is: How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines? Put another way: How is it possible that deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime? What is the structure and content of a political conception that can gain the support of such an overlapping consensus? (PL xx, emphasis added; see also 47)

Political liberalism is a response to the problem of political stability that confronts free and equal citizens in a polity because they will be deeply divided by the reasonable and incompatible doctrines held. Future political stability is threatened because citizens may lack a sufficiently secure shared political conception owing to their other significant differences. Rawls must explain how our significant differences concerning reasonable and incompatible doctrines do not prevent us from endorsing a shared political conception that secures future political stability. This is the central challenge of Rawls’s political liberalism (PL 134–140). A satisfactory solution to the problem of political stability addresses a central feature of modern democracies. Citizens accept different reasonable comprehensive doctrines that may conflict over political questions relating to justice. For example, citizens disagree on whether their political community should support capital punishment or public policies that criminalize euthanasia without exception. Some citizens will support these policies and others reject them in view of the comprehensive doctrines each accepts. Political liberalism respects the equality shared by citizens, and this respect forbids our prioritizing one comprehensive doctrine over others. This is because any priority would fail to honor the equality shared by all. Their comprehensive doctrines may differ and lead to incompatible policy preferences, but where they are reasonable it is incumbent upon us to treat all on an equal footing. The solution to the problem of political stability must present some means of determining political judgments acceptable to all that avoids treating reasonable comprehensive doctrines on an unequal basis. Rawls says: Thus I believe that a democratic society is not and cannot be a community, where by a community I mean a body of persons united in affirming the same comprehensive, or partially comprehensive, doctrine. The fact of

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Rawls’s solution must be some platform that all individuals might reasonably accept without prioritizing any one comprehensive doctrine over others. This solution must be available to all citizens from across all reasonable comprehensive doctrines. So the solution must be acceptable to all such doctrines without privileging any particular doctrine. Otherwise, political liberalism will fail to secure political stability over time.

POLITICAL STABILITY FOR THE RIGHT REASONS: THE OVERLAPPING CONSENSUS SOLUTION Rawls defends the idea of an overlapping consensus as a solution to the problem of political stability. This consensus is a common platform that all free and equal citizens may accept irrespective of which reasonable comprehensive doctrine each favors. The fact of reasonable pluralism renders impossible our prioritizing one reasonable comprehensive doctrine over others without failing to respect the equality of citizens (see JF 9). The reasonable disagreement that citizens have about conceptions of the good and a moral conception of justice need not extend to a shared political conception of justice (see JF 19, 21). For Rawls, political liberalism is the possibility of free and equal citizens endorsing a shared political conception of justice notwithstanding their reasonable disagreement about comprehensive doctrines. Citizens may share only those “values and ends . . . connected with the political conception of justice,” and they need not agree on further nonpolitical conceptions (JF 20). The problem of political stability is “a problem of political justice, not a problem about the highest good” (PL xxvii). Political stability is a problem of political justice that has a political solution. This solution is that citizens create an overlapping consensus that confirms a shared political conception of justice each citizen may reasonably accept. Rawls says: “political liberalism looks for a political conception of justice that we hope can gain the support of an overlapping consensus of reasonable religious, philosophical, and moral doctrines” (PL 10; see 137). An overlapping consensus is a shared conception of political justice that is not viewed as incompatible with the “basic religious, philosophical,

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and moral values” embedded in reasonable comprehensive doctrines (PL 157; see 97). Citizens may affirm an overlapping consensus as reasonable without sacrificing their acceptance of any reasonable comprehensive doctrine. An overlapping consensus is a shared framework that citizens may reasonably endorse. Citizens engage one another to create an overlapping consensus on “discussions of constitutional essentials and matters of basic justice” within a shared framework of political justice (PL l–li, 10). It is unnecessary that all citizens endorse every position endorsed by an overlapping consensus. This is because the possible objects of a consensus are subjected to reasonable disagreement. The fact of reasonable pluralism rules out unanimity in every case, but it does not forbid the possibility of a reasonable consensus that each citizen may endorse as reasonable. It is only necessary that all citizens endorse the boundaries for reasonable deliberation. Citizens employ public reasons to construct an overlapping consensus. Public reasons are claims we may reasonably offer to others for mutual acceptance. Public reasons may be contrasted with nonpublic reasons. Nonpublic reasons are reasons that may be acceptable to some but not all reasonable comprehensive doctrines. Consider the reason that our shared political conception of justice should reject the use of capital punishment because it is rejected by the Roman Catholic Church. This reason is a nonpublic reason because it requires our accepting the authority of the Roman Catholic Church, which may be incompatible with our particular reasonable comprehensive doctrine. This nonpublic reason cannot secure an overlapping consensus because of its potential incompatibility with reasonable comprehensive doctrines: its use in public justification would violate equality between citizens and comprehensive doctrines. An overlapping consensus is only possible where all citizens may reasonably accept the public reasons used to justify a shared political conception of justice notwithstanding their reasonable differences. Otherwise, a consensus based on nonpublic reasons is a political conception not all may reasonably endorse and so cannot serve as a shared view about justice. Public reasons may not settle all, or almost all, political questions, but they are the only reasons we have to perform this task (see PL liii). Public reasons are essential to the public justification of a shared political conception of justice. A political conception may be shared where it is reasonable to expect others to acknowledge its justification: “it must be acceptable, not only to our own considered convictions, but also

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to those of others” (JF 27). Public reasons govern public discourse and how citizens address fundamental questions about constitutional essentials and related matters. Public reasons help ensure that our shared political conception secures sufficient reciprocity between citizens (see IPRR, in LP 132–133). Reciprocity requires fair terms of cooperation that respect citizens as free and equal. Citizens engage on equal terms where their shared political conception is constructed through public reasons that each may accept. Reciprocity for citizens is secured by each citizen affirming a shared political conception from “within different and opposing comprehensive doctrines” supporting “a shared point of view from which they can resolve questions concerning the constitutional essentials” (JF 32). Public reasons are essential to the public justification of a shared political conception of justice because these reasons secure equality and reciprocity between citizens. Each citizen engages others on equal terms that are reciprocated, recognized, and “public.” Together, citizens attempt to affirm a shared political conception as an overlapping consensus supported by public reasons each citizen may accept. A shared political conception of a well-ordered society is an overlapping consensus. An overlapping consensus may be the subject of a shared political conception of justice because it is not a rival “comprehensive” view. Citizens require some commitment to a full or partial reasonable comprehensive doctrine prior to engaging in the construction of a shared political conception of justice. There is no option of endorsing a shared political conception instead of any comprehensive doctrine. Our overlapping consensus may be affirmed as reasonable by all citizens because it is a freestanding political conception of justice compatible with any reasonable comprehensive doctrine. The consensus is freestanding because its acceptance does not entail special commitment to any particular doctrine. An overlapping consensus justifies “stability for the right reasons” (PL xxxix, xli–xliii). Stability for the right reasons is achieved where all citizens may be expected to endorse as reasonable a shared political conception of justice through public reasons. For Rawls, such stability “usually is the most we can expect” (PL 1). Stability for the right reasons is not a modus vivendi whereby citizens suspend disagreements in a kind of truce (see JF 192–193). For Rawls, “what counts is the kind of stability, the nature of the forces that secure it” (PL 142, emphasis added). Stability is best secured when citizens may endorse a shared political conception as

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reasonable rather than agreeing to avoid disagreement for substantially different reasons. Citizens affirm a shared political conception of justice as reasonable and not purely in terms of their individual self-interest. Citizens need not compromise their comprehensive doctrines to affirm this shared conception because it is not incompatible with these doctrines (see PL 171). Nor is stability secured by coercion. Such an approach might contain any present hostilities, but it does so at the unacceptable cost of failing to respect citizens as free, equal, and reasonable. Only an overlapping consensus justifies political stability for the right reasons in terms equal citizens can affirm as reasonable. Stability for the right reasons endorses the “liberal principle of legitimacy.” Rawls says: Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason. . . . Only a political conception of justice that all citizens might be reasonably expected to endorse can serve as a basis of public reason and justification. (PL 137)

The liberal principle of legitimacy is a guarantee that political questions, even where “highly divisive,” may be settled, “so far as possible, by guidelines and values that can be similarly endorsed” (JF 41). We satisfy political legitimacy through the idea of an overlapping consensus constructed through public reasons. This is because an overlapping consensus provides a shared conception of political justice that does not violate the idea of each citizen as free, equal, and reasonable (see PL 96–97, 127, 144, 226). Rawls asks: “how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable religious, philosophical, and moral doctrines?” (PL 4). This possibility is presented in his Political Liberalism, where he “corrects the view in Theory, which fails to allow for the condition of pluralism to which its principles lead” (JF 187). The problem of political stability stemming from the fact of reasonable pluralism is overcome by the political construction of a shared conception of justice. This conception is an overlapping consensus created by public reasons. It is a freestanding conception of justice that all citizens may accept as reasonable without undermining

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their general equality. The problem of political stability arising from the fact of reasonable pluralism is best overcome through the use of public reason in constructing an overlapping consensus. For Rawls, “this is, I believe, the most reasonable basis of political and social unity available to citizens of a democratic society” (JF 32). Political liberalism is politically stable for the right reasons.

THE CENTRAL CRITICISMS Rawls argues that an overlapping consensus best solves the problem of political stability. This is how his solution to this problem has been interpreted as well. For example, Kurt Baier says: “Rawls now argues that the best way for political philosophers to attain stable social unity is to aim for a certain sort of agreement among citizens, which he calls ‘an overlapping consensus’ and which is the minimum sufficient for stable social unity.” Rawls’s solution of the overlapping consensus to the problem of political stability has been subjected to several important criticisms. These criticisms largely fall into two groups. The first group claims that Rawls’s solution is unnecessary; the second claims it is too fragile to succeed. I shall discuss each group in turn before arguing in the next section that any consideration about the “minimum sufficient for stable social unity” need not depend on an overlapping consensus alone. The first group claims that Rawls’s solution does not succeed because it is unnecessary. Rawls is mistaken to believe he requires an overlapping consensus at all. For example, Edward McClennen highlights two key claims in Rawls’s account. One is that Rawls assumes citizens are engaged in a cooperative venture: we enquire into which principles are best justified for free and equal citizens in a system of fair cooperation. McClennan argues that this assumption should lead us to hold that political stability will be possible “only insofar as participants can develop and effectively express to one another a communitarian commitment to their mutual well-being.” A second claim is that citizens will regulate their affairs by reference to Rawls’s two principles of justice. For McClennen, the unanimous endorsement of these principles helps develop their existing communitarian commitment. Rawls does not require an overlapping consensus to secure the possibility of political stability: such resources already exist, and they render an overlapping consensus largely redundant.

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Similarly, Brian Barry argues that Rawls’s idea of an overlapping consensus is unnecessary and “thoroughly misconceived.” An overlapping consensus is unnecessary because it is not required by the problem of political stability. This consensus is meant to form a connection that unites citizens under a shared political conception despite reasonable pluralism concerning different and opposing comprehensive doctrines. Barry claims a connection already exists in citizens affirming Rawls’s two principles of justice. If we require a political conception of justice that connects citizens, then such a conception is already present, rendering an overlapping consensus unnecessary. Barry identifies an important issue, and I agree with him that Rawls’s two principles of justice help secure political stability. However, I want to direct our attention to two considerations about Barry’s criticisms. The first is about whether an overlapping consensus is incoherent or merely redundant. The second consideration is about whether Rawls’s principles of justice are sufficient to ensure political stability. If an overlapping consensus were not incoherent and the principles of justice insufficient to secure political stability, then it may be the case that an overlapping consensus may help promote political stability after all. The first consideration is about whether an overlapping consensus is incoherent or instead unnecessary to secure political stability. Barry nowhere claims this consensus is incoherent: his concern is that Rawls is creating more philosophical work for himself rather than endorsing a position that clashes with his theory of justice. Barry notes that Rawls endorses the view that political stability requires inclusion of the two principles of justice. Citizens are free to form, revise, and pursue their own conceptions of the good without a need for some shared position on a comprehensive good. For Barry, this is evidence that Rawls already defended a theory of justice prior to Political Liberalism where the state is forbidden from prioritizing any one view of the good over others and where political justice is bound within the constraints of principles of justice. Rawls’s theory of justice “does not require an ‘overlapping consensus.’ ” The second consideration relevant in Barry’s critique of Rawls is whether the collective adherence by free and equal citizens to the two principles of justice is sufficient to secure political stability over time. Barry argues that Rawls’s theory of justice may not depend upon a comprehensive doctrine, but any account of its future stability must depend on one. Citizens are unified through their acceptance of principles of justice.

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This acceptance is an affirmation of a shared “sense of justice” that brings citizens together. Thus, for Barry, the problem with Rawls’s overlapping consensus is that it is unnecessary to deliver political stability. So this first group criticizes Rawls’s solution of an overlapping consensus because it is unnecessary to secure political stability. It is important to note that this critique claims that the shared sense of justice an overlapping consensus is meant to provide is also generated elsewhere in Rawls’s theory of justice, such as our shared endorsement of the two principles of justice. This critique usefully highlights this fact, but without providing much, if any, evidence that factors beyond an overlapping consensus will secure political stability. To argue that a shared sense of justice is multidimensional is one thing, but to claim it can deliver political stability another, and this remains unproven. So even if we were sympathetic to their critique, the first group does not convincingly establish an overlapping consensus is unnecessary or redundant. The second group of critics argue that an overlapping consensus is too fragile to secure political stability over time. For example, Leif Wenar argues: The full theory that Rawls advances is, in fact, not a political conception but a partially comprehensive doctrine—a doctrine that could support a political conception within an overlapping consensus, but that is itself too exclusionary to be the focus of such a consensus. Very few comprehensive views, as we now know them or can expect them to become, will support justice as fairness as Rawls describes it.

Wenar argues that, for Rawls, an overlapping consensus may not achieve more than a “limited consensus” that leaves political stability vulnerable. The concern is that each citizen must engage with others through public reasons all reasonable others may accept to forge an overlapping consensus. This will require citizens to restrict themselves to some reasons and not others that may not satisfactorily capture their convictions about political justice. All citizens engage others through this restricted set of those public reasons others might accept. While this may illuminate how an overlapping consensus is possible, the consensus forged is too limited and, thus, too fragile to establish political stability in light of the fact of reasonable pluralism. Political stability may require a more substantively thick connection if it is to do the work that Rawls aspires it to perform. Indeed, the possibility of a consensus may undermine the political stability

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it is meant to secure. So political stability is not necessarily secured even if we did forge an overlapping consensus because the consensus is too thin to form a sufficiently strong social bond. Michael Sandel offers a different perspective on why an overlapping consensus may be too fragile to secure political stability. Sandel argues that Rawls attempts to establish a consensus through an impoverished view of the citizen. Rawls claims we should appeal to “political values” through public reasons that others may accept as reasonable and bracket appeals to our personal moral and religious views. Sandel argues that this approach fails to engage satisfactorily with the relevant moral doctrines at stake in important controversies. Political agreement should not come at the cost of avoiding an engagement with comprehensive doctrines at the heart of citizen identity. Likewise, Kent Greenawalt argues: “The difficulty with asking people to rely on public reasons is that, if they do so, they may have to forego what they believe are really the best reasons for resolving particular problems.” This is a problem because the state ought not be neutral on many public policies, such as the necessity of abolishing slavery. If the state should defend redistributive policies despite reasonable disagreement from libertarians as warranted by the difference principle, then why should the state not take a similar nonneutral stance on other issues, such as permitting gay marriage? Rawls’s approach limits public debate too much in restricting deliberation to public reasons in order to construct an overlapping consensus. So perhaps we can forge an overlapping consensus. The problem remains, for Greenawalt, Sandel, and Wenar, that our consensus will be too fragile to secure political stability. The second group criticizes Rawls’s solution of an overlapping consensus because it is too fragile to secure political stability. We should note that this critique rests on a crucial assumption: that political stability depends upon an overlapping consensus alone. If it were true that political stability may receive significant support through other available resources, then perhaps an overlapping consensus might help secure political stability even where such a consensus is substantively “thin.” If such additional resources are available, then this criticism would fail to demonstrate that Rawls’s solution is unsatisfactory. This section has considered two major criticisms about Rawls’s solution. The first claims that an overlapping consensus is unnecessary to secure political stability because there are other resources that perform this task already. The problem with this critique is that their demonstrating

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additional avenues for creating common social bonds in Rawls’s theory of justice—all of which are different in form and character from an overlapping consensus—fail to convincingly argue a consensus is unnecessary but only that it is one of several ways in which common social bonds may be forged. The second group claims that Rawls’s solution is too fragile to secure political stability. The problem with this critique is that it assumes that stability depends upon our forging an overlapping consensus alone. If the consensus is one of several ways in which such common bonds may be created, then a consensus may be “thin” but without rendering our securing political stability impossible.

POLITICAL STABILITY BY OTHER MEANS There is much more to securing political stability than an overlapping consensus. This section will make this case. If this is correct, then the two major criticisms of Rawls’s solution fail. An overlapping consensus has a role to play, but not the only role, in forging stability. Consider how the consensus helps secure political stability. An overlapping consensus is a shared conception about justice that all citizens may endorse irrespective of which reasonable comprehensive doctrine each supports, and it is a conception that respects the equality of citizens. This consensus is not the only shared platform that respects citizen equality and that may receive support from all citizens despite the fact of reasonable pluralism. These additional shared platforms include our shared endorsement of constitutional essentials, such as the two principles of justice and requirement that all citizens are maintained above a social minimum. Even if an overlapping consensus were fragile, this does not entail our social bonds are likewise fragile. Instead, an overlapping consensus contributes to securing stability as one important element among others. Rawls acknowledges the “enormous importance” of constitutional essentials for any political conception of justice (JF 28). These essentials must be endorsed by all citizens and respect their equality and differences over preferred reasonable comprehensive doctrines. First, all citizens should mutually recognize one another as free and equal. This idea of “reciprocity” helps contribute to forging an important social bond among citizens. Political equality serves the purpose of securing a sufficient level of reciprocity among citizens. For Rawls, reciprocity is “fundamental to both justice and fairness” (JF 209). Leif Wenar says: “The use of

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political power must fulfill a criterion of reciprocity: citizens must reasonably believe that all citizens can reasonably accept the enforcement of a particular set of basic laws. Those coerced by law must be able to endorse the society’s fundamental political arrangements freely, not because they are dominated or manipulated or kept uninformed.” The idea of reciprocity is perhaps best understood as a form of mutual recognition. Citizens do not merely recognize others as having an equal voice but, more importantly, as having a voice that I ought to hear and consider in reciprocal engagement. So reciprocity plays a fundamental role in Rawls’s views about justice, and it is a normatively substantive social bond that citizens share. Rawls acknowledges that mutual respect between citizens may be threatened—and, thus, threaten political stability–where they fail to view one another as political equals (see PL 30). Furthermore, the social bonds arising from reciprocity and mutual respect generate their own support over time (JF 194; PL 140). Rawls says: “In a democratic regime, stable social cooperation rests on the fact that most citizens accept the political order as legitimate, or at any rate not seriously illegitimate, and hence willingly abide by it” (JF 125). The more citizens gain confidence in their mutual connections, the more these connections become cemented. Rawls says that “not only are our everyday ideas of justice influenced by our own situation, they are also strongly colored by custom and current expectations” (TJ 31). Likewise, the shared mutual recognition of citizens engaged in deliberative cooperation is likely further to cement the bonds of reciprocity and social connection over time. Reciprocity among citizens depends upon all endorsing two principles of justice (see PL li, 5–6). These principles are: (a) Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all. (b) Social and economic inequalities are to satisfy two conditions: first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; second, they are to be to the greatest benefit of the least-advantaged members of society (JF 42–43). The first principle has lexical priority over the second (JF 43; TJ 53). Social and economic inequalities may only be justified where every citizen enjoys equal basic liberties among other conditions. Rawls understands our basic liberties to include “freedom of thought and liberty of

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conscience; political liberties (for example, the right to vote and to participate in politics) and freedom of association” and “the rights and liberties covered by the rule of law” (see JF 44; TJ 53). Our mutual endorsement of basic liberties is an essential social bond: political stability may be undermined when it is unsecured. A further important way in which a social bond is created that may contribute to political stability is reasonable public deliberation. Political liberalism demands citizens engage one another through public reasons in order to forge an overlapping consensus. This deliberative process where citizens engage one another fosters multiple benefits, such as encouraging citizens to articulate better their conceptions of the good, those areas of common concern, and any points of incompatibility. Together, these elements contribute to establishing a form of public dialogue that may best support the creation of an overlapping consensus as well as increase public trust and the social bonds of civic friendship among citizens. There are then several ways in which social bonds are created that may help support political stability. First, the reciprocity and mutual recognition among citizens that each shares with others. Citizens recognize others as coequals with shared political institutions. This recognition is one source of social connection that respects citizen equality without denying the fact of reasonable pluralism. Second, reciprocity generates its own support over time: citizens come to identify more closely with others the longer they participate as fully cooperative members of a shared polity. Third, social bonds are further secured where the two principles of justice are endorsed by all. Citizens may come to forge closer social unity through the mutual recognition that each is entitled to an equal share of basic liberties. Fourth, the engagement between citizens through public reasons may help contribute to increasing public trust and the social bonds of civic friendship. But there is one additional and fundamental connection that may offer a strong core of potential future political stability. This is the social minimum of primary goods guaranteed to every citizen in Rawls’s theory of justice as fairness. An individual’s “primary goods” are “what persons need in their status as free and equal persons, and as normal and fully cooperating members of society over a complete life” (TJ xiii). These goods include the following: A. Basic rights and liberties, also given by a list; B. Freedom of movement and free choice of occupation against a background of diverse opportunities;

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C. Powers and prerogatives of offices and positions of responsibility in the political and economic institutions of the basic structure; D. Income and wealth; and finally, E. The social bases of self-respect (PL 181).

Crucially, Rawls does not argue that every citizen should have the same amounts of primary goods. Some may have more wealth or exercise additional freedoms than others, for example. This is because social and economic differences may be justified in light of other conditions having been met, such as the two principles of justice, which offer a guarantee that every citizen will possess primary goods above the threshold of the “social minimum” (see TJ 243, 267). Citizens must be above a social minimum of primary goods in order to secure “the adequate development and full exercise of their two moral powers and a fair share of the all-purpose means essential for advancing their determinate (permissible) conceptions of the good” (PL 187). The first moral power is the capacity for a sense of justice. This is defined as “the capacity to understand, to apply, and to act from (and not merely in accordance with) the principles of political justice that specify fair terms of social cooperation” (JF 18–19). The capacity for a sense of justice is then an activity of understanding and social engagement within a cooperative enterprise with others as free and equal. The second moral power is our capacity for a conception of the good. This is defined as “the capacity to have, to revise, and rationally to pursue a conception of the good” (JF 19). We do not derive our conceptions in isolation but through our community. Adequate capacity for exercising our two moral powers is dependent upon the guarantee of a social minimum. Furthermore, our capacity for exercising our equal basic liberties is also dependent on this guarantee. The social minimum is thus a threshold of central importance. It constitutes “the needs essential for a decent human life” (JF 129). Free and equal citizenship is only possible through its guarantee. Furthermore, the social minimum has additional importance because it crucially enables all citizens to “feel they are a part of political society” where each citizen understands himself or herself as having a stake in his or her political society. For Rawls, each person having the same set of basic liberties and equal opportunities will fail to secure the freedom and equality of citizens unless each is above a social minimum of primary goods. The social minimum plays a central role in securing political stability. This is because political stability is impossible over time where the social minimum threshold is not met. It provides a foundational shared

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connection linking all citizens irrespective of any disagreement on comprehensive doctrines that enables each to enjoy some essential share of primary goods that make active, deliberative citizenship possible. The overlapping consensus helps connect citizens, too, and in a different way. So citizens have more substantive shared connections than an overlapping consensus. The guarantee of the social minimum is one key connection that helps secure political stability that has been surprisingly overlooked by critics and perhaps also by Rawls. There are some important implications for criticisms of Rawls’s solution. One critique claims that an overlapping consensus is unnecessary because social bonds already exist that connect citizens of all reasonable comprehensive doctrines. First, the fact that other social bonds already exist does not establish that no further bonds are necessary. So we may accept that such bonds exist without finding an overlapping consensus unnecessary. Second, the alternative ways in which social bonds are created are different from the bonds arising from an overlapping consensus. Perhaps the consensus is not unique as an important source of social connection in Rawls’s theory. Nonetheless, the kind of connection it may offer is distinctive. Therefore, the first critique fails in its aims. The second critique claims that an overlapping consensus is too fragile to secure political stability. But even if we granted this argument, the critique fails to acknowledge that the overlapping consensus is not the only source of social connection that may unite citizens as free and equal without denying the fact of reasonable pluralism. The overlapping consensus does not act alone but in concert with other sources of connection that together help secure political stability, such as the social minimum. The second critique then fails in its aims, too. Political stability is supported by more than an overlapping consensus alone.

CAPABILITIES AND THE SOCIAL MINIMUM Critics argue that an overlapping consensus is either unnecessary or too fragile to secure political stability. I have demonstrated how these claims fail. An overlapping consensus is not the only source of connection between citizens, but it is a distinctive way in which citizens may become connected. It is not unnecessary because it is already accounted for as a different kind of connection that binds citizens. Nor is an overlapping consensus too fragile. This view fails to consider that it is one of several different connections that bring us together. An overlapping consensus

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secures political stability in concert with other connections, including our acceptance of two principles of justice and the guarantee of a social minimum. Political stability is stronger than often recognized. We have considered Rawls’s solution to the problem of political stability. Now we ask whether we might improve upon his account. The answer lies in the possibility of a more robust understanding about the social minimum. I will now argue that the social minimum might be best understood in terms of the capabilities approach. While Rawls resisted incorporating the approach into his theory of justice, I will argue this was a mistake and that his objections to this move are unsuccessful. So it is fully consistent with Rawls’s views about political liberalism to reinterpret the social minimum in terms of the capabilities approach, and the payoff is that political stability would be secured even better as a result. Political liberalism and the capabilities approach may be brought together, and this would improve our ability to secure political stability. The capabilities approach focuses on the capability of an individual to do or be. Its purpose is to illuminate a more compelling understanding of human freedom and well-being. We look to capability options highlighting the choices individuals actually possess, if they wish to choose. This distinction draws attention to the difference between secured and unsecured options. Capabilities are not mere nominal options but are those any individual might genuinely exercise if she chose. An individual’s freedom to choose is central to any account about capabilities. It is her ability to choose to do or be that has priority. Consider a case where there are two hungry people: one person is starving and another is fasting. Both possess the same actual functioning because neither is consuming food. While they share the same actual functioning, they differ in their capability possibilities. This is because only the person who is fasting has chosen to avoid food consumption. The starving person lacks this choice and therefore lacks the same freedom and well-being as the fasting person. Only the latter is able to exercise her capabilities. I am not the first to argue that Rawls’s theory of justice should incorporate the capabilities approach in order to improve political liberalism. For example, Martha Nussbaum argues that contractarian theories, such as political liberalism, conflate the primary subjects of justice with those who choose principles of justice for all. Social-contract doctrines assume that contracting persons are all roughly equal in capacity and bargaining position. They fail to include people who lack such capacity, such as those with severe and atypical mental impairments. Not every person is sufficiently similarly situated, and some may be even unable to consider and

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select principles of justice for all. This is a major problem for a theory of justice that claims to include every person as free and equal. Nussbaum argues that her capabilities approach is compatible with Rawls’s idea of political liberalism and that it overcomes this problem. Capabilities “can become the object of an overlapping consensus among people who otherwise have very different comprehensive conceptions of the good.” Nussbaum’s approach “uses the idea of a threshold level of each capability, beneath which it is held that truly human functioning is not available to citizens.” This provides a crucial safeguard that ensures that all persons irrespective of differences concerning mental or physical capacities are guaranteed human functioning above this threshold. Incorporating the capabilities approach better respects the equality of citizens. Furthermore, the approach can be acceptable to every person who respects the fact of reasonable pluralism. My first claim is that the capabilities approach helps provide a more substantively rich understanding of primary goods. Recall that, for Rawls, every citizen is guaranteed a social minimum. This represents a sufficient threshold of primary goods, such as (a) basic rights and liberties, (b) freedom of movement and choice of occupation, (c) political and economic freedoms, (d) income and wealth, and (e) “the social bases of self-respect” (PL 181). The primary goods represent a package of essential rights and freedoms, opportunities, basic needs, and self-respect. The capabilities approach captures this conception in a more robust alternative. Consider Nussbaum’s list of ten capabilities: life; bodily health; bodily integrity; senses, imagination, thought; emotions; practical reason; affiliation; other species; play; and control over one’s environment. Neither the capabilities approach nor the social minimum is meant to offer a complete account of social justice although both are an essential component for any such account. Instead, both are best understood as accounts of “minimum core social entitlements.” Capabilities and the social minimum address the same goods, but the capabilities account provides greater clarity. So both capture a minimum of basic rights and liberties although only the capabilities approach is more explicit in its relationship to human rights and rights more generally. They each address our freedom of movement and occupational choice, but the capabilities approach provides greater specification of their importance for human flourishing and related goods, such as affiliation, recreation, and some measure of control over our political and material environments. Capabilities better elucidate a more substantive, and more defensible, understanding of self-respect and social recognition through our ability to relate to others, for example.

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But capabilities offer us more than a longer or more “thick” list of goods. More importantly, the capabilities approach defends a more compelling view about income and wealth in terms of contributions to welfare rather than the resource-based account defended by Rawls. A social minimum in terms of income may not be secured where each has the same resources because there may be differences in resource needs to guarantee an equal threshold of welfare. Some individuals may require greater resources than others to enjoy the same relative welfare. A person with physical disabilities may require additional resources to guarantee the same access to public buildings, for example. My argument is that the capabilities approach provides a more substantive and compelling view of the social minimum of primary goods. This position owes much to Nussbaum’s earlier work, but there is a crucial difference. We agree that the capabilities approach can form of the object of an overlapping consensus because persons endorsing any reasonable comprehensive doctrine can accept her approach. We disagree in how the approach might be best understood in relation to Rawls’s political liberalism. Nussbaum argues that the capabilities approach can form the object of an overlapping consensus and should be understood in this way. This is the view that the capabilities approach provides a crucial addition to political liberalism. Instead, I argue the capabilities approach is best understood as a crucial revision within political liberalism. It is a revision of the social minimum that, first, better elucidates each aspect of our primary goods in a more substantive and compelling way. Not only do primary goods map onto capabilities, but the latter extend the range and depth of primary goods to include a new account of basic needs in terms of capabilities. Second, the capabilities approach as a revision of the social minimum does not render political stability less possible because the approach can be accepted by any reasonable comprehensive doctrine. The capabilities approach need not be considered an additional feature but rather a revision for whatever forms the substance of the social minimum must be itself acceptable to any reasonable comprehensive doctrine. One possible reason why Nussbaum argues for the capabilities approach as a compatible addition to, rather than a revision of, political liberalism is revealed in this passage: That is why the political principles of the capabilities approach are supported by independent arguments about human dignity. We do not try to generate principles out of compassion alone, but, instead, we seek to

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the capabilities approach and political liberalism support them and render them stable through the development of a compassion that is attuned to the political principles for which we have argued.

This suggests that the capabilities approach is a view that must develop over time through reflection about our lived experiences relating to human flourishing. Capabilities cannot be determined in advance, and they are subject to revision over time. They are more readily compatible to an evolving overlapping consensus that can secure the support of all without failing to change as we change. The concern is that an understanding of capabilities as a revision of the social minimum instead might become too fixed and inelastic to capture the evolving, multidimensional nature of human flourishing. Instead, Nussbaum argues that capabilities should be understood as part of an overlapping consensus. This is because the capabilities approach is a partial conception of justice that is compatible with any reasonable comprehensive doctrine. The capabilities approach and political liberalism may be combined, but through the addition of an overlapping consensus rather than as a revision of the social minimum. One response to this possible objection is that there is no reason to insist that the social minimum of primary goods cannot become revised over time—and Rawls would be mistaken to argue otherwise. In fact, it is necessary that the social minimum be sufficiently flexible to account for future developments in our understanding of it in light of the changing circumstances we might encounter. This is because the “social minimum” is contextual. Understanding the social minimum as capabilities better captures this contextual flexibility to address change over time. My view of how the capabilities approach might help revise political liberalism is different from alternative accounts, such as Nussbaum’s and Sen’s. While I agree with Nussbaum that her list of capabilities “could figure as an account of primary goods,” I have argued that this list should provide such an account. One reason is that it provides a more substantive understanding of our primary goods. A second reason is that Nussbaum’s list of capabilities are understood in terms of threshold satisfaction. We must secure a minimal threshold of capability satisfaction in order to guarantee capabilities to every one. Some may exercise capabilities above this threshold, but—as a matter of social justice—it is essential that this threshold can be met for each capability for every person without tradeoffs between capabilities. No one need exercise each or every

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capability, but every one must be able to do or be so if she chooses. Similarly, primary goods are part of a social minimum where some may possess more than others so long as every one is above a threshold and in keeping within the difference principle. The third and most crucial reason for why the capabilities approach should be understood as a revision of the social minimum is because the approach will better secure political stability over time. If a social minimum of primary goods helps guarantee political stability as I have argued in the previous section, then the revision of this minimum in terms of the capabilities approach better guarantees political stability because it is a more substantively robust understanding about the social minimum that must be secured for every person. The capabilities approach can help guarantee political liberalism by further strengthening an important connection that links us all. My argument builds off of Amartya Sen’s illuminating critique of Rawls’s theory of justice. Sen argues that primary goods are better understood as capabilities. Rawls should revise his account of primary goods to remove a problematic ambiguity at its heart and clarify the role of primary goods in securing individual freedom and well-being. Sen says: Some primary goods (such as “income and wealth”) are no more than means to real ends. .  .  . Other primary goods (such as “the social basis of self-respect” to which Rawls makes an explicit reference) can include aspects of the social climate, even though they are generalized means (in the case of “the social basis of self-respect” means to achieving selfrespect). Still others (such as “liberties”) can be interpreted in different ways: either as means (liberties permit us to do things that we may value doing) or as the actual freedom to achieve certain results.

Rawls understands primary goods instrumentally as a means of satisfactory human living but not its end. This position, for Sen, fails to capture the important distinction between “doing something” and “being free to do that thing.” This problem can be solved by revising Rawls’s account of primary goods and understanding them as capabilities. Sen argues that such a revision is “not a foundational departure from Rawls’s own program, but mainly an adjustment.” Sen’s understanding of “basic capabilities can be seen as a natural extension of Rawls’s concern with primary goods” and as a more robust account. Furthermore, Rawls should also recognize

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that institutions are not always required to deliver justice in some cases— and a further benefit of understanding primary goods as capabilities is that Rawls would correct this mistake. Sen says: “Democracy has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard.” If the primary goods were understood as capabilities, then this revision might overcome problems at the heart of Rawls’s theory of justice as fairness without undermining political liberalism and, in fact, help improve the securement of political stability. Nussbaum disagrees with Sen about the relation between capabilities and primary goods. One reason is that understanding the primary goods in terms of capabilities would jeopardize the “desired simplicity” Rawls aspired to with his theory of justice “both in indexing relative social positions and in describing the point of social cooperation.” So this revision might further complicate Rawls’s theory in an unsatisfactory way. This is not a view that Nussbaum shares but rather an argument about why Rawls would have rejected such a move. In other words, perhaps Rawls’s theory might benefit from such a revision, but it would depart from the simplicity he aimed to achieve. Sen is incorrect to argue Rawls should accept this revision even if there is good reason to accept it. A second, and more powerful, reason is that we cannot merely reformulate the primary goods in this way because “for Rawls to become such a contractarian would require a major overhaul of the theory, particularly as a theory of economic justice.” This is because Rawls remains committed to “the twin ideas of ‘rough equality’ (Humean Circumstances of Justice) and the advantages of social cooperation.” Abandoning these twin ideas is to reject much of what social-contract theories have traditionally embraced. For Nussbaum, individual decisions about conceptions of the good are left by Rawls to citizens, whereas the capabilities approach endorses a shared, public conception where the good of others is built into the good of each citizen. Furthermore, capabilities are not merely instrumental to human dignity but are “ways of realizing a life with human dignity.” The right and the good are inseparable, and they “seem thoroughly intertwined.” Capabilities are “fundamental entitlements of citizens,” and all capabilities are “necessary for a decent and dignified human life”: “If people are below the threshold on any one of the capabilities, that is a failure of basic justice, no matter how high up they are on all the others.” Nussbaum recognizes the potential overlap between primary goods and capabilities that Sen identifies. However, revising the former by the latter

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leaves Rawls’s contractarianism largely intact. The capabilities approach is incompatible with the idea of “rough equality” because the approach is designed to capture better the full range of human dignity in its diversity. Furthermore, the capabilities approach is more than instrumentally valuable for securing the well-being of individuals. Sen’s revision would leave Rawls’s theory serving two very different masters. The capabilities approach is compatible with political liberalism, but Rawls’s theory would require more substantial revision than of the primary goods alone. The problem is that we must choose sides: either Rawls should continue to support a resource-based model, or this should be abandoned in favor of a well-being model such as the capabilities approach. We cannot have both. But why not adopt a hybrid approach? One criticism of the capabilities approach that it is imbalanced. We consider whether individuals satisfy a capability threshold but remain blind to inequalities above this threshold. This is a problem because justice may permit, if not require, institutional schemes that are resourcist, such as “by taxing them without regard to their particular needs or endowments.” So capabilities theorists offer a view about justice that is far too narrow and incomplete for its critics. Rawls’s political liberalism does not suffer from this problematic tension. Rawls admits that his resource-based account already attempts to incorporate some measure of well-being. So the choice is not whether Rawls should excise any measure of well-being from his theory but rather whether well-being can and should play a more central role. Revising his account of primary goods in terms of capabilities is one way in which this may be better achieved. But it is not a choice between one or the other, as some critics claim. There may still be a possible tension to resolve. Critics of the capabilities approach have highlighted the potential problem that the approach may address issues of justice pertaining to those under a social minimum but perhaps without much focus on inequalities above this threshold. Rawls may include elements of well-being while offering us a resourcist account that addresses unjust inequalities wherever they are found. The challenge is that capabilities theorists may offer a more robust account of well-being but lack the ability to address a similar range of unjust inequalities both below and above the social minimum. One reply to this challenge is to argue that the critics of the capabilities approach are correct to argue that there are issues about justice for those below and above the threshold of capabilities satisfaction. However, these are different in character and perhaps also in priority. Inequalities

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below a threshold fail to satisfy a social minimum on my reconstruction and represent an injustice where individuals are denied the opportunity to live a decent human life. This does not mean that no injustice is possible above the threshold of a social minimum but rather that any such injustice may lack the priority of any injustices below the social minimum. The capabilities approach focuses our attention on the more fundamental domain of potential injustice below a social minimum, but capabilities may also address other potential injustices and often do. Critics are wrong to argue that the capabilities approach cannot address some inequalities and not all because its proponents prioritize their attention on more pressing inequalities below a social minimum. These critics must demonstrate that the approach cannot be so applied. They have not. If we follow Sen and revise the social minimum in terms of the capabilities approach, we may improve our understanding of primary goods and better secure political stability. Rawls rejects Sen’s proposed revision, and I believe this is a mistake. Rawls recognizes that his account of primary goods and Sen’s account of capabilities share significant overlap. For example, Rawls says that “I hope that now our views are in accord on the topics that concern us here, though his view has more broader aims than mine” (PL 179). Rawls says further: “I agree with Sen that basic capabilities are of first importance and that the use of primary goods is always to be assessed in the light of assumptions about those capabilities” (PL 183). Rawls argues: In reply, it should be stressed that the account of primary goods does take into account, and does not abstract from, basic capabilities: namely, the capabilities of citizens as free and equal persons in virtue of their two moral powers. It is these powers that enable them to be normal, and fully cooperating members of society over a complete life and to maintain their status as free and equal citizens. . . . These remarks locate the role of primary goods within the framework of justice as fairness as a whole . . . we see that it does recognize the fundamental relation between primary goods and persons’ basic capabilities. In fact, the index of those goods is drawn up by asking what things, given the basic capabilities included in the (normative) conception of citizens as free and equal. (JF 169–170)

Rawls argues that “Sen might accept the use of primary goods, at least in many instances”: primary goods already incorporate some substantive

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connection with capabilities that does not require further revision (JF 170). Primary goods have flexibility in application even if not explicitly open to future revision over time and changing circumstances. But the difference is that primary goods are more determinate and easier to apply than capabilities. Rawls says: “A scientific (as opposed to a normative) measure of the full range of these capabilities is impossible as a matter of practice, if not theoretically as well” (JF 171). For Rawls, concepts such as “well-being” are “not sufficiently determinate” (TJ 283). Primary goods are more attractive because they offer an account that speaks to some measure of well-being in a way that is more relevant for application to practices. Primary goods, not capabilities, satisfy the publicity criterion whereby claims of injustice are easily accessible and verifiable by all. This criticism of Sen’s account is much less of a problem for Nussbaum’s list of capabilities. So one criticism of the capabilities approach is that it is too imprecise and does not offer “workable criteria for interpersonal comparisons that can be publicly and, if possible, easily applied” (PL 186). This objection may be overcome by defending a more determinate account, such as Nussbaum’s capabilities approach, which avoids this problem by providing us with a more definite measure of interpersonal comparisons through the device of ensuring threshold satisfaction for each individual across a range of ten capabilities. The second, and more crucial, reason why Rawls rejects Sen’s proposed revision of the primary goods as capabilities is because Rawls understood capabilities as a comprehensive doctrine. Rawls argues that political liberalism “presupposes no particular comprehensive view, and hence may be supported by an enduring overlapping consensus of reasonable doctrines” (JF 37). Rawls believes that primary goods have a more limited nature than capabilities. These goods are understood within a political conception of justice that addresses the needs of citizens and “not anyone’s idea of the basic values of human life and must not be so understood” (PL 188). Rawls says: “Justice as fairness rejects the idea of comparing and maximizing overall well-being in matters of political justice”: primary goods should not be understood in terms of “anyone’s idea of the basic values of human life . . . however essential their possession” (PL 188). Political liberalism would then best respect the fact of reasonable pluralism and endorse a political conception “that is mutually acceptable to citizens generally” (PL 188). The problem with this objection is that it assumes without argument that the capabilities approach is an overly substantive view about

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the good that a person might reasonably reject. The primary goods are compatible with any reasonable comprehensive doctrine. So Rawls cannot be opposed to any endorsement of goods for fear that they might be incompatible with reasonable pluralism without denying primary goods altogether. Rawls is clear that primary goods overlap to some substantial degree with capabilities, such as the need to secure the guarantee of moral powers for each individual. Rawls appears to claim that primary goods are different from capabilities because they provide a sufficiently “thin” conception of the good endorsable by all reasonable persons. Primary goods are a sufficiently thin conception because they are compatible with any reasonable comprehensive doctrine. But what Rawls needs to argue is not that primary goods are sufficiently thin but rather that capabilities are too “thick”: the issue is not whether capabilities are more robust but whether they are incompatible with any reasonable doctrine. If they are not, then Rawls’s objection fails. And it does fail. The capabilities approach is not a fully comprehensive doctrine, as even its leading critics accept. Political liberalism can and should incorporate the capabilities approach as a revision of primary goods.

CONCLUSION I have argued that central criticisms directed at Rawls’s solution to the problem of political stability are unsuccessful. They mistakenly consider the possibility of political stability primarily in terms of whether an overlapping consensus is sufficiently robust to provide a satisfactory foundation. This position gains some support from the fact that Rawls offers the idea of an overlapping consensus as a solution to the problem of political stability. Rawls’s critics have argued for one of two views. The first is that this move is unnecessary because Rawls’s theory already contains resources to foster political stability over time, such as our shared commitment to principles of justice and the need to secure a social minimum of primary goods. The second view argues that an overlapping consensus is too fragile to secure a consensus on its own and, thus, Rawls fails to provide a satisfactory solution to the problem of political stability. I have argued that these criticisms are mistaken. The first view is correct to argue that Rawls’s account already contains resources to help

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secure political stability. But it is wrong to claim that an overlapping consensus is therefore redundant. Instead, I argued that it offers a distinctive contribution to how political stability might be achieved in addition to resources already available. The second view may be correct to argue that an overlapping consensus is too fragile to secure political stability over time by itself. It is nonetheless mistaken to claim that it must secure stability by itself. On the contrary, an overlapping consensus is one of several sources for securing political stability. So even if an overlapping consensus were too fragile by itself, this is not a major problem for Rawls’s political liberalism because the consensus is not employed in this way. Rawls may overcome these criticisms about the use of the overlapping consensus in securing political stability over time. I next argued that Rawls might further improve political stability through revising his account of primary goods in terms of a capabilities approach. I agreed with Sen that the capabilities approach offers an improved account of a revision of primary goods. I further agreed with Nussbaum on several further claims. First, that her list of capabilities overcomes Rawls’s concern about the lack of specification in other accounts of capabilities. Second, that her emphasis on the need to secure attainment of capabilities above a threshold better develops Rawls’s idea of the requirement that all citizens secure primary goods above a social minimum. Third, I agree with Nussbaum that capabilities represent a view of well-being that can be endorsed by any reasonable comprehensive doctrine: the capabilities approach and political liberalism can and should be brought together. Nussbaum and I disagree on how this might be achieved and on its attractiveness. Nussbaum argues that bringing them together may help overcome the problems of contractarianism at the heart of Rawls’s theory. I have argued that bringing together capabilities and political liberalism may help better secure political stability. These views are not opposed to each other but mostly represent differences in emphasis. The capabilities approach and political liberalism can and should be brought together. Capabilities help improve our understanding of primary goods and the social minimum that is compatible with any reasonable comprehensive doctrine. Furthermore, the union of capabilities and political liberalism better secures political stability. Rawls was mistaken to believe they could not be combined in this way, and he failed to recognize how their union might improve political stability. Rawls should

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have revised his account in light of Sen’s and Nussbaum’s constructive critiques to produce an even more compelling defense of political liberalism.

notes 1.

2.

3.

4.

5.

6.

Rawls acknowledges that most individuals accept a partially, not fully, comprehensive doctrine. Nonetheless, we consider individuals as if they accept a fully comprehensive doctrine. See JF 193 and PL 13, 168. See Kurt Baier, “Justice and the Aims of Political Philosophy,” Ethics 99 (1989): 771–790; Brian Barry, “John Rawls and the Search for Stability,” Ethics 105 (1995): 874–915; George Klosko, “Rawls’s Argument from Political Stability,” Columbia Law Review 94 (1994): 1882–1897; and Edward F. McClennen, “Justice and the Problem of Stability,” Philosophy and Public Affairs 18 (1989): 3–30. See also Gerald Gaus, “A Tale of Two Sets: Public Reason in Equilibrium,” Public Affairs Quarterly 25 (2011): 305–325; and Samuel Scheffler, “The Appeal of Political Liberalism,” Ethics 105 (1994): 4–22, esp. 20–21. See Kent Greenawalt, “Some Problems with Public Reason in John Rawls’s Political Liberalism,” Loyola of Los Angeles Law Review 28 (1995): 1303–1317; Michael Sandel, “Political Liberalism,” Harvard Law Review 107 (1994): 1765– 1794; Michael Sandel, Liberalism and the Limits of Justice, 2nd ed. (Cambridge: Cambridge University Press, 1998), 184–218; Leif Wenar, “Political Liberalism: An Internal Critique,” Ethics 106 (1995): 32–62; and Iris Marion Young, “Rawls’s Political Liberalism,” Journal of Political Philosophy 3 (1995): 181–190, esp. 184– 185. See also Fabian Freyenhagen, “Taking Reasonable Pluralism Seriously: An Internal Critique of Political Liberalism,” Politics, Philosophy, and Economics 10 (2011): 323–342; Jon Garthoff, “The Idea of an Overlapping Consensus Revisited,” Journal of Value Inquiry 46 (2012): 183–196; Chandran Kukathas and Philip Pettit, Rawls: A Theory of Justice and Its Critics (Cambridge: Polity, 1990), 149; and Cynthia A. Stark, “Respecting Human Dignity: Contract Versus Capabilities,” Metaphilosophy 40 (2009): 366–381. Note that this argument is distinctive from Martha Nussbaum’s argument for bringing together the capabilities approach and political liberalism to overcome the contractarian character of the latter. While I am in broad agreement with Nussbaum on this important philosophical innovation, my argument takes a different form and addresses the issue of political stability rather than contractarianism. See Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2006). See IPRR 131 (in LP); JF 3–4, 33–34, 36, 40, 84; and PL 24–25n227, 63–64, 129, 140, 144, 147–148, 172. Hereafter I will refer to “reasonable comprehensive doctrines” and “comprehensive doctrines” interchangeably. For example, see Thom Brooks, “Retributivist Arguments Against Capital Pun-

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ishment,” Journal of Social Philosophy 35 (2004): 188–197; Thom Brooks, “Retribution and Capital Punishment” in Retributivism: Essays on Theory and Practice, ed. Mark D. White (Oxford: Oxford University Press, 2011), 232–245; and Thom Brooks, Punishment (New York: Routledge, 2012), on capital punishment and political justice. 7. See JF 32–38; PL 133–172. See Samuel Freeman, Rawls (London: Routledge, 2007), 366–371; Sebastiano Maffetone, Rawls: An Introduction (Cambridge: Polity, 2010), 261–274; Martha C. Nussbaum’s introduction to this volume; and T. M. Scanlon, “Rawls on Justification” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 159–161. 8. Rawls argues that only persons with reasonable comprehensive doctrines should forge an overlapping consensus; persons with unreasonable comprehensive doctrines are not included in constructing this consensus. This need not require that those with unreasonable comprehensive doctrines are omitted altogether from public discourse. Persons that accept unreasonable comprehensive doctrines may still engage with others in discussing how an overlapping consensus might be created between them. One result will be that persons accepting an unreasonable comprehensive doctrine will likely fail to offer public reasons in support of a consensus. There is no danger of an overlapping consensus becoming unreasonable where only public reasons may be used to construct it. A second result is that persons accepting an unreasonable comprehensive doctrine might better understand their need to accept some reasonable comprehensive doctrine through engagement with others in the domain of public discourse. The inclusion of persons with unreasonable comprehensive doctrines need not undermine the construction of an overlapping consensus among reasonable comprehensive doctrines. Additionally, their inclusion may make their conversion to a reasonable comprehensive doctrine more likely. I am indebted to Pauline Kleingeld for forcing me to consider further these issues. See also Freeman, Rawls, 371; Martha C. Nussbaum, “Rawls’s Political Liberalism: A Reassessment,” Ratio Juris 24 (2011): 6–11; Martha C. Nussbaum, “Perfectionist Liberalism and Political Liberalism,” Philosophy and Public Affairs 39 (2011): 22–24, 29; Nussbaum’s introduction to this volume; and Wenar, “Political Liberalism,” 36–38. 9. See PL xviii and also xxi (“Given the fact of reasonable pluralism of democratic culture, the aim of political liberalism is to uncover the conditions of the possibility of a reasonable public basis of justification on fundamental political questions”). For a critical analysis of Rawls’s understanding of reasons and reasonableness, see Onora O’Neill, “Political Liberalism and Public Reason: A Critical Notice of John Rawls, Political Liberalism,” Philosophical Review 106 (1997): 411–428. 10. See PL 140: “We hope that . . . in working political practice ground the constitutional essentials and basic institutions of justice solely in those political values, with these values understood as the basis of public reason and justification” (emphasis added).

168 11.

12. 13.

14. 15.

16. 17. 18.

19.

20. 21.

22.

the capabilities approach and political liberalism Rawls presents an important distinction between the realms of the rational and the reasonable whereby the former sets constraints on the latter. The rational realm refers to citizens endorsing principles of justice in an original position that apply to the basic structure; the reasonable realm refers to our use of public reason to create an overlapping consensus that all may reasonably accept notwithstanding individual reasonable comprehensive doctrines. See JF 6–7, 81, 191; PL 48–54. See John Rawls, “Justice as Fairness,” in CP 208. See JF 92; PL 213, 220–222. It may seem more natural to contrast “public reason” with “private reason.” For example, private reasons might be those reasons acceptable to a closed or limited set of comprehensive doctrines whereas public reasons may be reasonably endorsed by all. Nonetheless, Rawls rejects this contrast claiming that “there is no such thing as private reason.” All reasons have a social character: they are distinguished by the size of their potential audience from the family or small groups to fellow citizens. See PL 220n7. See IPRR, in LP 169–170; and PL lv–lvii. See JF 26–27, 91; and PL 163 (“I stress the significance of the role of public reason”). See also Chad Flanders, “The Mutability of Public Reason,” Ratio Juris 25 (2012): 180 (“It seems no exaggeration to say that, for Rawls, without public reason there would be no political liberalism”). See PL 215, 246 (“the answer must be at least reasonable, if not the most reasonable, as judged by public reason alone”). See IPRR, in LP 136; and PL 16–17. See also TJ 29–30. Charles Larmore argues that the shared political conception is secured “not for the different reasons we may each discover, and not simply for reasons we happen to share, but instead for reasons that count for us because we can affirm them together.” Charles Larmore, “Public Reason,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 368. While it is clear that a shared political conception is forged through public reasons each citizen may endorse, citizens may differ on the individual reasons for endorsing this conception. Rawls says that citizens “affirm the political conception from within different and opposing comprehensive doctrines, and so, in part at least, for different reasons” (JF 32; see PL 94, 143). Public reasons are “public” because they satisfy “the publicity condition.” This condition is satisfied where citizens are in a position to know and accept the basic structure, its governing principles of justice, and the public reasons that provide legitimate political justification underpinning an overlapping consensus. See TJ 115, JF 120–122, and PL 68. See PL xxix: “Political liberalism is not comprehensive liberalism.” See PL xlvii–xlviii, 10, 99, 144–145. For a critical examination of Rawls’s idea of the freestanding doctrine, see Charles Larmore, “The Moral Basis of Political Liberalism,” Journal of Philosophy 96 (1999): 599–625. See JF 33, 37; PL 13.

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23. See PL 147–148, 54 (“This reasonable society is neither a society of saints nor a society of the self-centered”). 24. See Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996), 223–242. Rawls identifies Hobbes’s Leviathan as the first (and “surely the greatest work of political philosophy in English”) to specify the problem of political stability and its possible solution. See JF 1; Rawls, “The Sense of Justice,” in CP 104; John Rawls, Lectures on the History of Political Philosophy, ed. Samuel Freeman (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2007), 73; and Barry, “John Rawls and the Search for Stability,” 881. 25. See TJ 57; JF 41; PL 217, 224–226, 243. 26. See Rawls, “The Idea of Public Reason Revisited,” in LP 137, and PL 143 (our shared political conception of justice must “win its support by addressing each citizen’s reason, as explained within its own framework”). See also PL 153. 27. Baier, “Justice and the Aims of Political Philosophy,” 771. 28. While I focus on what I believe are the best critiques of Rawls’s position, I do not claim that my analysis is exhaustive. See Maffettone, Rawls, 270–272. 29. See McClennen, “Justice and the Problem of Stability,” 23, 30. 30. See ibid., 30. 31. See Barry, “John Rawls and the Search for Stability,” 914–915. 32. See ibid., 875, 878–879, 880, 901, 904. 33. See ibid., 887, 910, 885, 904. 34. Wenar, “Political Liberalism,” 33. 35. See ibid., 39. For a critical assessment of this position, see also Alexander Kaufman, “Stability, Fit, and Consensus,” Journal of Politics 71 (2009): 533–543. 36. See Wenar, “Political Liberalism,” 57. 37. See Freyenhagen, “Taking Reasonable Pluralism Seriously,” 327. 38. See Sandel, “Political Liberalism,” 1776–1777. 39. See ibid., 1776. See also Freyenhagen, “Taking Reasonable Pluralism Seriously,” 332–333. 40. See Sandel, “Political Liberalism,” 1778; Sandel, Liberalism and the Limits of Justice, 191, 196–197. 41. Greenawalt, “Some Problems with Public Reason in John Rawls’s Political Liberalism,” 1305. See Kukathas and Pettit, Rawls, 149. 42. See Sandel, “Political Liberalism,” 1785–1787. 43. See ibid., 1788; Sandel, Liberalism and the Limits of Justice, 207–210. 44. See Sandel, “Political Liberalism,” 1792. 45. It might be argued that neither group of critics addresses the point made by Rawls that principles that cannot be shown to be potentially stable cannot be defended as acceptable to reasonable and rational citizens. Nevertheless, I will argue that Rawls’s account has been misunderstood in the following section and that political stability is secured by several means, although this can and should be improved. I am particularly grateful to Frank Michelman for this important insight.

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46. See JF 139: “The least advantaged are not, if all goes well, the unfortunate and unlucky—objects of our charity and compassion, much less our pity—but those to whom reciprocity is owed as a matter of political justice among those who are free and equal citizens along with everyone else.” 47. See Rawls, “Justice as Reciprocity,” in CP 209. 48. Leif Wenar, “John Rawls,” Stanford Encyclopedia of Philosophy, http://plato .stanford.edu/entries/rawls. 49. See Thom Brooks, “Reciprocity as Mutual Recognition,” The Good Society 21 (2012): 21–35. See JF 8. Rawls also refers to “reciprocal recognition.” See TJ 48. 50. See TJ 119, 155–156. 51. Rawls claims we may expect great popular agreement in support of the first principle of justice over the second. See JF 48. 52. Rawls appears unconvinced that acceptance of these principles alone would secure political stability. But this is not to argue that it would not help contribute to securing political stability in concert with other philosophical resources, such as an overlapping consensus. See PL 66. 53. See Daniel M. Weinstock, “The Justification of Political Liberalism,” Pacific Philosophical Quarterly 75 (1994): 177–178. 54. The guarantee of the social minimum is also part of the constitutional essentials for any just polity. See PL 228–229. 55. On the idea of stakeholding and justice, see Brooks, Punishment, chapter 8. 56. See also Frank I. Michelman, “Poverty in Liberalism: A Comment on the Constitutional Essentials,” Drake Law Review 60: 101–121. 57. On capabilities more generally, see Thom Brooks, “Capabilities,” in International Encyclopedia of Ethics, ed. Hugh LaFollette (Oxford: Blackwell, 2013); and Ingrid Robeyns, “The Capability Approach: A Theoretical Survey,” Journal of Human Development and Capabilities 6 (2011): 93–117. 58. On these accounts, see Paul Weithman, Why Political Liberalism? On John Rawls’s Political Turn (Oxford: Oxford University Press, 2010), 345–346. 59. Nussbaum, Frontiers of Justice, 16, 137, 29, 31–33, 66–67, 88–90, 108–113, 33. 60. See ibid., chaps. 1–3; Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), 5, 14, 59, 74–75, 105; and Martha C. Nussbaum, Creating Capabilities: The Human Development Approach (Cambridge, Mass.: The Belknap Press of Harvard University Press, 2011), 19, 79, 89–93, 182. 61. Nussbaum, Frontiers of Justice, 70. 62. Ibid., 71. 63. See TJ 244–245, 279; and Nussbaum, Frontiers of Justice, 75. 64. Nussbaum, Creating Capabilities, 40 (capabilities specify “a rather ample social minimum”). 65. See Nussbaum, Frontiers of Justice, 78; Nussbaum, Creating Capabilities, 62; Martha C. Nussbaum, “Capabilities and Human Rights,” Fordham Law Review 66 (1997): 273–300; Martha C. Nussbaum, “Capabilities, Entitlements, Rights: Supplementation and Critique,” Journal of Human Development and

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70. 71.

72.

73.

74. 75. 76. 77.

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Capabilities 12 (2011): 23–37; and Amartya Sen, “Elements of a Theory of Human Rights,” Philosophy and Public Affairs 32: 315–356. Nussbaum, Frontiers of Justice, 71–74, 114, 124–125. See Nussbaum, Creating Capabilities, 48–62. Nussbaum, Frontiers of Justice, 163. See Nussbaum, Women and Human Development, 76. Nussbaum, Frontiers of Justice, 139–140. Nussbaum and I may disagree about the content of capabilities. We are in agreement that capabilities can form the object of an overlapping consensus. However, I am less certain that her specification of the content of her list of capabilities is consistent with an overlapping consensus. For example, the capability of bodily integrity includes “reproductive health”—an idea characterized by the promotion of safe sex and reproductive choice. If this is accurate, then the specification of this capability renders the approach incompatible with reasonable comprehensive doctrines, such as Roman Catholicism, that reject these options. There are also potential concerns with other capabilities: the capability of “play” could also run contrary to reasonable comprehensive doctrines that promote productive work over leisure activities depending on its specification. My claim is not that capabilities are inconsistent with any reasonable comprehensive doctrine, but rather that their specification can undermine their consistency with these doctrines if our aim is to promote capabilities as forming the object of an overlapping consensus, as Nussbaum argues. See Nussbaum, Women and Human Development, 78. Nussbaum, Frontiers of Justice, 91. Nussbaum, Creating Capabilities, 15: “Nor is the list [of capabilities] final: if it turns out to lack something that experience shows to be a crucial element of a life worthy of human dignity, it can always be contested and remade.” Nussbaum, Frontiers of Justice, 79, 304–305; and Nussbaum, Creating Capabilities, 89–92. See Samuel Freeman, “Frontiers of Justice: The Capabilities Approach Versus Contractarianism,” Texas Law Review 85 (2006): 390–391. Rawls nowhere explicitly states that the primary goods composing the social minimum may be revised over time. The view of primary goods as revisable may not be inconsistent with his views, but it is not a position Rawls appears to endorse. See TJ 54–55, 348–349; JF 58–59; and PL 188–189 (and see 189n20). See also Eva Feder Kittay, Love’s Labor: Essays on Women, Equality, and Dependence (New York: Routledge, 1999). Nussbaum, Frontiers of Justice, 116. See Nussbaum, Women and Human Development, 5, 74–75. See Nussbaum, Women and Human Development, 12: “The notion of a threshold is more important in my account than the notion of full capability equality.” See Amartya Sen, “Well-Being, Agency, and Freedom: The Dewey Lectures 1984,” Journal of Philosophy 82 (1985): 199–201. See Nussbaum, Frontiers of Justice, 141; Nussbaum, Women and Human Development, 68; and T.  M. Scanlon, “Value, Desire, and Quality of Life,” in The Quality of Life, ed. Martha C.

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79. 80. 81. 82.

83. 84.

85. 86. 87. 88. 89. 90. 91.

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the capabilities approach and political liberalism Nussbaum and Amartya Sen (Oxford: Oxford University Press, 2009), 197–199. While this account may be much improved “if concentration on primary goods were to be replaced by direct engagement with capabilities,” Sen does not claim that Rawls’s account requires no further revision. Amartya Sen, The Idea of Justice (London: Allen Lane, 1999), 262n. See Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 1999), 56; Amartya Sen, Inequality Reexamined (Oxford: Oxford University Press, 1995), 33; Sen, The Idea of Justice, 238; and Amartya Sen, “The Economics of Happiness and Capability,” in Capabilities and Happiness, ed. Luigino Bruni et al. (Oxford: Oxford University Press, 2008), 24–25. Sen, Development as Freedom, 306–307. See Sen, The Idea of Justice, 234. Ibid., 234, 237. See Sen, “Well-Being, Agency, and Freedom,” 198–199. See Sen, Inequality Reexamined, 87 (“We have to examine interpersonal variations in the transformation of primary goods (and resources, more generally) into respective capabilities to pursue our ends and objectives”), 81–84, 86–87, 110; and Sen, The Idea of Justice, 64. See Sen, The Idea of Justice, 66. Amartya Sen, Equality of What? (Cambridge: Cambridge University Press, 1980), 218–219. See Sen, Development as Freedom, 74, 78; and Sen, The Idea of Justice, 262 (“he leaves the determination of ‘just institutions’ for distributional fairness exclusively on the slender shoulders of primary goods to provide the basic institutional guidance. This does not give his underlying concern for capabilities enough room for influence at the institutional phase with which his principles of justice are directly concerned.”). Sen, The Idea of Justice, 90. Ibid., 238. Nussbaum, Frontiers of Justice, 142. Ibid., 142, 146, 147–149, 158, 161, 162–163, 166–167. See Nussbaum, Women and Human Development, 73; Nussbaum, Creating Capabilities, 36. See Pogge, “A Critique of the Capability Approach”; and Erin Kelly, “Equal Opportunity, Unequal Capability,” in Measuring Justice, 68–69, 77–78. Pogge, “A Critique of the Capability Approach,” 49. Not all proponents of capabilities endorse the view that it should be understood in terms of achieving minimal thresholds. This fact further undermines the criticism that capabilities cannot address a wide range of potential unjust inequalities. Rawls and Sen fundamentally disagree about whether Rawls’s account of primary goods is sufficiently flexible. See PL 185: “Sen forcefully raises the question whether an index of primary goods can be sufficiently flexible to be just or fair. I cannot pursue the matter here and simply state the conjecture that by taking advantage of the information that becomes available at the legislative stage, a sufficiently flexible index can be devised in that it gives judgments as just or fair as those of any political conception can work out.”

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93. See Maffettone, Rawls, 217. See also G. A. Cohen, On the Currency of Egalitarian Justice and Other Essays in Political Philosophy, ed. Michael Otsuka (Princeton, N.J.: Princeton University Press, 2011), 40–43, 47–48, 50–51. 94. See John Rawls, “Social Unity and Primary Goods,” in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982), 169–170; LP 13. 95. See Freeman, “Frontiers of Justice,” 419–420. It might also be argued that resourcist theories are more contested and contestable than its proponents have recognized. See Ingrid Robeyns, “Assessing Global Poverty and Inequality: Income, Resources, and Capabilities,” Metaphilosophy 36 (2005): 30–49. 96. See Henry S. Richardson, “Some Limitations of Nussbaum’s Capabilities,” Quinnipiac Law Review 19 (2000): 309–332; and Martha C. Nussbaum, “Reply,” Quinnipiac Law Review 19 (2000): 349–370, at 362–365 in conversation; and Thom Brooks, “A New Problem with the Capabilities Approach,” Harvard Review of Philosophy 20 (2014): 100–106. On Sen’s rejection of endorsing any list of capabilities, see his “Elements of a Theory of Human Rights,” 333n13. On Sen’s capability theory and its possible operational specifications, see Sabina Alkire, “Why the Capability Approach?” Journal of Human Development 6 (2005): 115–135. 97. My thanks to Samuel Freeman for pressing me on this point. 98. I do not accept that a more “thick” conception of the good need create problems for Rawls if the capabilities approach was incorporated into his political liberalism. This is because the issue is whether capabilities must be incompatible with any reasonable doctrine, and no one has yet provided any convincing account for that claim. Capabilities may provide a more thick conception of the good, but they need not be seen as endorsing a more problematic conception, too. 99. See Thomas Pogge, “A Critique of the Capability Approach,” in Measuring Justice: Primary Goods and Capabilities, ed. Henry Brighouse and Ingrid Robeyns (Cambridge: Cambridge University Press, 2010), 19–20. 100. No matter other differences in our accounts, I would argue that Nussbaum’s arguments for how capabilities and political liberalism may be brought together have an added attractiveness because capabilities help secure political stability. 101. Earlier drafts of this chapter were presented to the Faculty of Philosophy at the University of Groningen, the School of Law at the University of Amsterdam, the Department of Philosophy at the Open University, the Department of Philosophy at Durham University, and the School of Politics, Economics, and Philosophy at the University of York. I am most grateful to Boudewijn de Bruin, Samuel Freeman, Peter Jones, Pauline Kleingeld, Derek Matravers, Liz McKinnell, Frank Michelman, Martha Nussbaum, Martin O’Neill, Bhikhu Parekh, Jon Pike, Mozaffar Qizilbash, Samuel Scheffler, and Martin van Rees for constructive criticisms as the ideas in this chapter were developed.

5 THE PRIORITY OF LIBERTY rawls and “tiers of scrutiny” Frank I. Michelman The first principle [of justice] assigns the basic liberties, as given by a list, a special status. . . . A basic liberty can be limited or denied only for the sake of one or more other basic liberties. —John Rawls, Political Liberalism No priority is assigned to liberty as such. . . . There is, to be sure, a general presumption against imposing legal and other restrictions on conduct without sufficient reason. But this presumption creates no priority for any particular liberty. —John Rawls, Political Liberalism

I. INTRODUCTION

A. The (Alleged) American Two-Tiered Model of Constitutional Protection for Freedom of Action In constitutional democracies around the globe, courts of law face choices about how best to organize their work of fixing the bounds of constitutional protection for individual freedom of action. A compressed account

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of a reputedly American way—whether it is in actuality the American way is a contested question—will convey the sort of choice I mean. This “twotiered” model (TTM), as we may call it, is marked by a combination of features not widely copied elsewhere. First, in charting the bounds of constitutional protection for individual freedom of action, a judge adhering to the TTM does not tie herself down to the liberties specifically named in the Constitution’s bill (or “enumeration”) of rights—“the free exercise of religion,” “the right to bear arms,” and so on. Rather, the judge takes the term “liberty” in the Constitution’s due-process guarantees—securing persons against “depriv[ations] of liberty without due process of law”—to supply what the insurance trade might call “umbrella” coverage, meaning substantive coverage of risks (here, regulatory risks to freedom of action) not covered by whatever other insurance one may carry. Second, judges adhering to the TTM read a heavy deductible into the umbrella clause thus constructed. Not every dimension of freedom of action, they say, is equally covered by the umbrella. The decisions extrude a test or standard for selecting what is to be covered from a noncovered (or barely covered) residue. In a typical expression—the details do not matter for now—the umbrella covers all and only those dimensions of action-freedom deemed “fundamental” or “central” to “personal dignity and autonomy.” Judges thus set for themselves the task of sorting claims to nonenumerated negative liberties into the two classes of—to put the matter very roughly—the leading and the ordinary, reserving serious review for apparent legislative incursions on the leading liberties only and giving markedly shorter shrift to the rest. The judges erect, in that way, a two-track scheme of review. It seems most countries do it differently. The South African Constitutional Court has so far refused to read a libertarian umbrella clause into their constitution’s guarantee of “freedom and security of the person”—leaning rather toward confinement of that clause’s reach to cases of physical or bodily abuse or restraint. Germany reads a clausal guarantee of “free development of personality” to cover “freedom of action in the widest sense possible” but also reads this guarantee as broadly qualified by the state’s power to impose restrictions that are proportionately justified in view of the urgency of the state’s morally warranted objectives as compared with the gravity of the resultant curbs on personal freedom of action. Germany thus applies one and the same sliding-scale “proportionality” test to all legislative restrictions on freedom of action. South Africa, while declining umbrella coverage, likewise subjects to one and

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the same proportionality test all complaints about violations of any of its numerous, dedicated clauses on freedoms of expression, religion, association, assembly, movement, trade and occupation, and the list goes on. We thus see that there is nothing obviously compelling, or even obviously textually self-recommending, about either the TTM’s construction of substantive umbrella coverage out of a “liberty” or “freedom” clause or its construction of a two-track review protocol to operate (so to speak) inside or under the umbrella. Even within strictly American constitutionallegal debate, the TTM comes under challenge both as prescription for a sound constitutional practice and as description of the actual conduct of constitutional adjudication here. James Fleming and Linda McClain, for example, have written skeptically of what they call the “myth” of strict scrutiny. The Fleming/McClain intervention is notable because these authors write, now as in the past, as declared allies, expositors, and defenders of Rawlsian political liberalism. Look, then, at the quotations from Rawls with which I introduced this chapter. Consider whether they do not, on their face, suggest a likely receptiveness by Rawls to something akin to the TTM. Are Fleming and McClain, then, in this respect, issuing their declaration of independence from Rawls? That would be a misreading. Elsewhere in their book, Fleming and McClain invoke approvingly and rely expressly on the Rawlsian conception of a distinct “priority” of protection for a confined cluster of “basic liberties” (as opposed to just plain liberty as such) over the state’s pursuit of other public goods and goals. Their objection, then, is not to the TTM’s sorting of the liberties into what I have called “leading” and “ordinary.” Rather, what draws their fire is the falsity, as they see it, of the TTM’s reputed extreme intolerance for state regulation of basic liberties, even in the pursuit of aims, including the propagation of liberal virtues, to which high values are rightly, in their view, assigned. Fleming and McClain want to defend liberal constitutionalism against charges of excessively rigid preference for individual negative liberties over other genuinely liberal social goods. To that end, rebuttal of a charge of excessively strict judicial curbs on state infringements on freedom of action is obviously germane. Not so, however, when it comes to a distinction between those freedoms that are and are not in some sense leading or “basic.” Contention against the latter distinction would be more than trivially un-Rawlsian because— as I argue below—a distinction of that kind is positively invited by the overall aims of Rawlsian liberal justice.

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B. A Matter for Philosophy? Thus we hit upon a question you might not have been expecting: Can the political philosophy of John Rawls shed any light on technical, legaldoctrinal choices such as that represented by the TTM? And then here comes another, perhaps even less expected question: Might the pursuit of that question shed any light on Rawlsian political philosophy? Reject, if you will, the idea of looking to political philosophy for the guidance of constitutional law. (“We like Rawls, you like Nozick. We win, 6–3.”) It still might be the case that the doings or the knowhow of constitutional lawyers can sometimes shed light on works of political philosophy. Both the philosophical writings of Rawls and the doctrine-work of American constitutional law lay down orders of march for the evaluation of claims to the priority of individual freedom of action over the legislative pursuit of collective goals and concerns. By bringing the relevant parts of the two discourses into conjunction under a supposition of mutual sympathy between them, do we achieve any clarification of the philosophy—or, conversely, of the American institutional practice and its possible motivations? The TTM presents itself as a judicial tool for managing the flow of constitutional-adjudicative business—not so much a pure rendition of the Constitution’s value-content as a judicial technician’s “implementation” of it. Thus regarded, the TTM may not appear to be prime grist for the philosopher’s mill. Nevertheless we toss it into the mill; we read the philosopher’s book with a view to mining it for whatever implications it might carry in regard to this technical lawyers’ practice. We do so not in search of a philosophical thumbs-up or thumbs-down on the practice but rather in hopes of learning something further about the philosophy and what makes it tick. (Of course we’ll gladly accept any convincing, collateral advice about the practice that might happen to come along.) The idea, then, is to see what turns up when we undertake synchronous readings of the two discourses, each in the other’s shadow, with a view to locating our respective accounts of the philosophy and the practice in a shared conversational field. A point to stress is that we seek a reciprocal, reflective exchange between the two. The project is not that of a one-way appraisal of the practice from the philosophy treated as prescriptive. To the contrary, we approach our work with a mind no less open to rereadings of the philosophy than to revisions of the practice.

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C. Rereading: Rawls and the Body A rather widespread line of complaint against Rawls flows from the grounding of his “political” case for the priority of liberty in a thin conception of the good for humankind, focused on conditions conducive to each person’s development and exercise of certain “moral powers.” The trouble supposedly is that there are some liberally appealing constitutional positions for which no cogent defense can be found without direct appeals to a thicker, more materialized conception of the human good— that would take in, say, the exercise and enjoyment of sexual powers— than a conception centered on the moral powers might seem to suggest. I take as my example a strikingly argued essay by Andrew Koppelman, which uses for illustration the question of the law’s response to parental imposition, on minor daughters who may be too young have a say that could count, of the surgery known as clitoridectomy or female genital mutilation (“FGM”). Would not a reduction of core-constitutional liberty to exercises of the moral powers leave liberals (paradoxically) unable to generate a decisive case for the suppression by law of this practice? Such is Koppelman’s question. The Rawlsian standard for a permissible legislative limitation of a basic liberty is that the limitation is required in order to maintain a scheme of equal basic liberties conducive to development and exercise of the moral powers. Koppelman points out that parents choosing FGM for their young daughters are typically prompted by reasons of concern for those daughters’ lifetime well-being—thus, reasons of conscience—that cannot be dismissed as liberally unreasonable. (As one, but by no means the only, such reason, Koppelman cites a concern for future marriageability within the social grouping in which the child’s identity may be anchored over a lifetime.) On the other hand, says Koppelman, the state can cite no reason, directly grounded in regard for anyone’s development and exercise of the moral powers, for a direct interference with the conscientious parents’ exercise of theirs. (“That parents get to make value choices on behalf of their own children,” Koppelman aptly reminds us, is “a traditional constraint on state power in free societies.”) Conducted with due care, the surgery poses no threat to general health. It does not curtail the development of anyone’s powers of conscience and thought or anyone’s avenues of communication or association in aid of conscience and thought. The surgery may limit some options for sexual enjoyment

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in later life, but it also can reasonably be thought to preserve other kinds of options—identitarian, associational, and sociocultural—that may be highly valued and that may be foreclosed if surgery is postponed. And the options it limits, being primarily matters of sex and sexual enjoyment, do not seem to lie especially near the supposed higher-order interest of a person in the development and exercise of the moral powers. The result, then, is that the Rawlsian standard—allowing limitations of basic liberties only as required for advancement of a scheme of liberties conducive to the development and exercise of the moral powers—leaves the state with a highly uncertain case for prohibiting parental imposition of FGM, far short of the open-and-shut decisive objection on which Koppelman expects liberals to converge. Thus, in full outline, Koppelman’s argument shapes up as follows: (a) Liberals presumably support legal protection of young children against parentally imposed FGM. (b) However, Rawls’s pursuit of a strictly “political” liberalism, working only from a supposition of every person’s highest-order interest in the development and exercise of the moral powers and blocking out all other—including more materialized—human interests and goals, leaves him unable to mount an unequivocal defense for the constitutional propriety of such protection. (c) It follows that liberals disinclined to yield on protection cannot accept such a sparely “political” liberalism as Rawls has on offer. I think that Koppelman’s worry is misplaced, and I think that reading Rawls on the priority of liberty through my constitutional lawyer’s lenses helps me to see why that is so.

II. A THOUGHT EXPERIMENT

A. A Rawlsian Constitution Imagine a constitution, recently adopted, whose entire first chapter, headed “Bill of Liberties,” reads as follows: 1. The following are the basic liberties of persons. A basic liberty may be limited only if and as required for the sake of some other basic liberty,

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in order to achieve and maintain a fully adequate scheme of equal basic liberties for everyone. No basic liberty may be limited except as thus required, not even for the sake of the public good or the achievement of justice in other respects. The fullness and adequacy of the scheme of basic liberties shall be decided in terms of its conduciveness to everyone’s full and adequate development and exercise of the moral powers. a. liberty of conscience. b. freedom of association. c. freedom of thought. d. the political liberties. [e1. freedom of movement.] [e2. free choice of occupation.] e. freedoms specified by the liberty and integrity of the person. f. rights and liberties covered by the rule of law. 2. Subject to section 1, freedom of action may be limited for the sake of the public good and the achievement of justice but never arbitrarily or without some credible reason of proper public concern.

As will appear below (part II.D), that text is a virtual reproduction of a “blackletter” expansion (as lawyers might call it) of the first of John Rawls’s famed, proposed two principles for the regulation of the basic structure of a just society. In Rawls, to be sure, the first principle of justice is coupled to a second, which requires the assurance by laws of a fair background structure—fair equality of opportunity and so on—against which persons exercise their liberties (including economic liberties not classed as basic) and live with the results. Rawls takes the position that constitution writers contemplating adjudicative enforcement of constitutional law would serve justice best by mainly forbearing to constitutionalize the requirements of the second principle, even as they do right to constitutionalize the requirements of the first. But he is equally clear that, as a matter of political morality, each of the two principles of justice is binding on the work of the country’s ordinary legislative assembly or parliament. Insofar as an extant regime’s full complement of laws in force might fail to carry out the requirements of the second principle, that regime would fail the test of justice. This somewhat complex, Rawlsian assignment of political-moral binding force but not constitutional-legal binding force to the second principle will figure crucially in our exegesis to come, but not just yet.

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B. Rawls, J. We continue setting up our thought experiment. We suppose the country in question to have a Supreme Court consisting of precisely one justice, call him “Rawls, J.” Rawls, J. is not the philosopher John Rawls. He is a judge whose theory of constitutional interpretation is what we may call abstract-originalist. The framers, he is convinced, wrote and adopted the country’s constitution, and most particularly sections 1 and 2, with a view to implementation of the political conception of “justice as fairness” as laid down by a certain Professor John Rawls (“Rawls, P.”) in the book Political Liberalism. That conception takes the form of two principles (along with certain explanatory codicils) to govern choices and actions regarding the basic structure of a national political society including its legal system and laws. So where questions of constitutional-legal doctrine and practice remain fairly open under the constitutional texts and precedents and thus remain still to be decided by judicial acts of constitutional interpretation, Rawls, J. will be guided by the framers’ supposed project of implementation of Rawls, P.’s political conception in the medium of constitutional law. (And that aim, of course, may direct Rawls, J.’s mind, from time to time, to questions of what Rawls, P.’s conception is.)

C. Questions for Decision At the moment, two questions of constitutional-legal protocol and practice not previously decided await decision. Both ask how closely, if at all, constitutional-legal practice in our imagined country is to track the TTM. We saw above (part I.A) that there is nothing obviously, textually self-recommending about either the TTM’s construction of a substantive umbrella clause out of the U.S. Constitution’s guarantees respecting “liberty” or its invention of a two-track review protocol to operate within the umbrella. Choices for and against adoption of either or both of these features of the TTM are currently regarded as open questions in our imagined country’s constitutional law. No case coming before Rawls, J.’s court has yet prompted a resolution of either choice. Until now. Owing to the co-pendency of two cases now before his court, Rawls, J. finds himself impelled toward a resolution of both. One case questions the permissibility under Constitution sections 1 and 2 of an

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“insurance mandate” provision in a statute relevantly similar to the healthcare-reform package recently enacted in the United States. The second case questions the permissibility of a flat, statutory prohibition against provision of assistance to suicide, amounting to a denial to every person, in all circumstances, of freedom of access to medical assistance in bringing life to an end at a time and in a manner decided by that individual. The government, defending both cases, points out that neither of the action-choices at stake in them is plainly covered by any item found in section 1’s list of constitutionally protected basic liberties (see section II.A). Justice Rawls—abstract-originalist in method, holding the view he does of the framers’ inspirations and aims—is reluctant to conclude that section 1 is silent on the question of a protected right, in some circumstances, to control termination of life. He is therefore disposed to look in section 1 for an umbrella clause, a functional equivalent to American dueprocess “liberty.” But Justice Rawls is furthermore, for like reasons, rather strongly disposed to doubt that section 1 rules out the insurance mandate. And so he is led to wonder whether a section 1 umbrella clause, in case he detects one there, must necessarily cover (in the German phrase) “freedom of action in the widest sense possible.”

D. The Blackletter The first recourse of Rawls, J. is to the blackletter of Political Liberalism. Here is what he finds. To begin with, the following are the foundational principles of justice for the regulation of laws and acts affecting a society’s basic structure: [First principle.] Each person has an equal right to a fully adequate scheme of equal basic liberties which is compatible with a similar scheme for all. [Second principle.] Social and economic inequalities are to satisfy two conditions. First, they must be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they must be to the greatest benefit of the least advantaged members of society (PL 291).

But Justice Rawls believes the following four commentaries must be equally directive for his purposes:

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the priority of liberty: rawls and “tiers of scrutiny” Commentary A The equal basic liberties are specified by a list as follows: freedom of thought and liberty of conscience; the political liberties and freedom of association, as well as the freedoms specified by the liberty and integrity of the person; and, finally, the rights and liberties covered by the rule of law (PL 291–292). Commentary B (explaining the famous “priority” of the first principle of justice over the second): The first principle assigns the basic liberties, as given by a list, a special status.  .  .  . They have an absolute weight with respect to reasons of the public good and perfectionist values. . . . A basic liberty can be limited or denied only for the sake of one or more other basic liberties (PL 294–295). Commentary C (explaining how it is determined when due regard for (“the sake of ”) one liberty requires limitation of another): [The criterion is] to specify and adjust the basic liberties so as to allow the adequate development and the full and informed exercise of [the] moral powers.  .  .  . A liberty is more or less significant depending on whether it is more or less essentially involved in, or it is a more or less necessary institutional means to protect, the full and informed and effective exercise of the moral powers (PL 333, 335). Commentary D No priority is assigned to liberty as such, as if the exercise of something called “liberty” has a preeminent value and is the main if not the sole end of political and social justice. There is, to be sure, a general presumption against imposing legal and other restrictions on conduct without sufficient reason. But this presumption creates no priority for any particular liberty (PL 292).

The four commentaries join the First Principle formula to make up, so to speak, an expanded blackletter statement on the priority of liberty. The blackletter thus unfolded may seem quite neatly and handily to settle the two questions of constitutional interpretation awaiting decision by Justice

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Rawls. A Rawlsian constitution specifies the protected basic liberties by a list (A). Such a constitution requires that legislative limitation of any of the listed liberties—but only of them—must undergo a special kind of scrutiny (B + C ) to determine whether it really is required for the sake of another basic liberty. But a Rawlsian constitution also denies anything like the same level of protection to the residue of freedom of action—freedom of action in general or “as such” (D)—by allowing to the residue no protection beyond a generic restraint against groundless restriction. So there we have it: a two-track system of review. All mentioned (i.e., listed, “basic”) liberties (Constitution section 1) are protected by strict scrutiny (as we lawyers call it), while the unmentioned, “nonenumerated” residue of negative freedom of action gets a far more cursory form of protection. But what about the umbrella-clause question? Do you say the answer is that yes, there is a (thin) umbrella clause, and section 2 contains it? That answer, as I now undertake to show, would be mistaken. The right answer, I believe, is that there is a thick umbrella clause, and its home is section 1.

E. Blackletter Machination Rawls, J., as I have said, is strongly inclined toward the view that somewhere in the text of this avowedly “Rawlsian” constitution must lie a declaration of muscular protection for a personal right, in some circumstances, to control termination of life. But where, then? In which clause? And how is he going to read that clause (if he can find it) to direct or allow him also to uphold the constitutionality of the insurance mandate—that also being a result that he feels quite sure should follow from his abstractoriginalist approach to the interpretation of this constitution? Rawls, J. needs, he feels, a closer look at the constitutional texts, sections 1 and 2, read against the supposed background Rawlsian inspiration. He starts by confirming that Constitution section 2 offers no protection for the freedoms claimed in either case. With regard to both the insurance mandate and the prohibition of assistance of suicide, supporting reasons of proper public concern are evident. The insurance mandate is reasonably believed to gird the fiscal integrity of a nationwide scheme of regulated market insurance (doubtless a proper project in a Rawlsian view, in the pursuit of background justice), and furthermore it circumvents freeloading on the public by nonpayment of bills for medical

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services consumed at emergency rooms and elsewhere. The exceptionless prohibition of assistance of suicide guards against risks of error and abuse. Thus, if either claim to constitutional protection is to succeed, it will not be by force of section 2; it will have to be by way of the stricter scrutiny prescribed by section 1. But then which clause or clauses of section 1 will contribute to the work of getting the suicide case (but not the insurance case) under the coverage of that section? Rawls, J. will have to comb through section 1’s list of basic liberties (see above, part II.A). He begins at the bottom and moves upward from there. “Rights and liberties covered by the rule of law,” section 1(f )? That seems primarily aimed at regularities of legal form and process of the sort that Lon Fuller called the “morality” of law—generality, promulgation, prospectivity, clarity, noncontradiction, performability, reliability—along with fair-procedural prerequisites such as notice, hearing, confrontation, and impartiality. Perhaps, in a pinch, this clause might be taken to refer also to some sort of substantive protection for freedom of action—on the view, say, that the very idea of legality encompasses some minimum measure of such protection. But how, then, would the clause differentiate between our two test cases, except possibly by passing the question of strict protection-or-no along to some other basic liberty or liberties in section 1? So how about 1(e), “freedoms specified by the liberty and integrity of the person?” With a view to giving this item’s wording some special bite of its own (which would not flatly contradict section 2), we might take “freedom and integrity of the person” to refer primarily to the embodied person’s interest in security against direct physical abuse, invasion, and restraints. Supposing for the moment that no other item in the section 1 list will get in the way, that would give Rawls, J., his right result for the insurance-mandate case. But what about the assisted suicide case? It conceivably could work there, too, but only if Justice Rawls were willing to treat the claim in that case as consisting, at its core, of a claim for freedom from bodily imposition, as distinct from a claim of freedom to act without regulatory restriction by the state. However, he cannot do that as long as he takes interpretative guidance from Rawls, P., assuming he knows of “The Philosophers’ Brief.” We try out some other clauses. Rawls, P. mentions “freedom of movement” and “free choice of occupation” as belonging among the “essential” matters to be secured by a just society’s constitutional law (see PL 228, 308). He treats these liberties both as entailments of the economic

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distributive justice (“fair equality of opportunity”) guaranteed by the second principle of justice as fairness (PL 228) and as liberties valued in terms of the first principle, that is, as preconditions for the full and adequate exercise of the moral power to form, revise, and rationally pursue one’s own conception of the good (PL 308, 335). We might, accordingly, want to include these two items in the canonical list of basic liberties in our constitution’s section 1. Doing so will not provide any solution to Rawls, J.’s dilemma, because neither item can provide a key to his envisioned yes/ no decision-pair in the two test cases. Of course, their addition would not trouble Justice Rawls in the health-insurance case, but neither could they help him with the suicide case. Nor need we pause long over item 1(d), the political liberties. No plausible argument can be marshaled to suggest how denial of either the freedom to choose the time and manner of one’s death or the freedom to shun insurance—any more than denial of any other action-choice—could possibly be taken to demean, much less to impede or impair, anyone’s exercise, through active engagement in public and political affairs, of the so-called first moral power, the dignity-conferring, respect-engendering capacity for a sense of justice and thus for engagement in the public working out and implementation of fair terms of social cooperation. Item 1(c), then, freedom of thought? In neither of our two test cases is anyone stopped from thinking, or from thinking anything in particular, or being punished or harshly treated for thinking what they think. But of course that won’t do for an answer, for fairly obvious reasons we can leave to our soon-to-come treatment of liberty of conscience. What should rather serve for now is to notice how Rawls, P., writing in Political Liberalism, deploys the terms “freedom of thought” and “liberty of conscience” in a self-consciously correlative and schematic way, designed to mark and track a classic dualism in the constitutional concept of liberty: “positive”/“negative,” “of the ancients”/“of the moderns”—and, in a distinctive Rawlsian version, in the “first” and “second” so-called fundamental cases. Thus, the first fundamental case is connected with the capacity for a sense of justice [the first moral power] and concerns the application of the principles of justice to the basic structure of society and its social policies. The political liberties and freedom of thought are discussed under this heading;

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the priority of liberty: rawls and “tiers of scrutiny” the second fundamental case is connected with the capacity for a conception of the good [the second moral power] and concerns the application of the principles of deliberative reason in guiding our conduct over a complete life. Liberty of conscience and freedom of association come in here. (PL 332)

Since both our test issues plainly belong to the second fundamental case, we may as well keep pushing along toward liberty of conscience. But a pause at item 1(b), “freedom of association,” will prove instructive. How far and wide, we might ask, can this rubric’s protective mantle be stretched? Quite remarkably far, it might seem. Does not the state’s suicide-assistance prohibition disrupt an association between the patient and her medical providers (actual and potential)? Does not the state’s mandatory insurance law compel an association with one or another insurance company? Yes and yes, if you like, but still the constitutionallegal cogency of such observations must in each case depend on what “association” means as used in 1(d), and that, in turn depends—in our current exercise—on how we understand the point of picking out this particular freedom as a specially protected, basic liberty. Rawls, J., remember, is supposed to follow Rawls, P.’s account of why and how freedom of association figures in the basic-liberties list. It figures—so teaches Political Liberalism—as an “indispensable institutional condition” of the full and adequate exercise of the moral powers in the fundamental cases (PL 309). “Liberty of conscience” names the right that specifically shelters the moments of the immediate exercise of the moral powers in these cases—the capacity for a sense of justice in the first fundamental case and the capacity for a conception of the good in the second. Liberty of conscience thus assumes a motivic or title-role status in the Rawlsian play of liberties (PL 309, 313, 333, 335). Yet this liberty can no more by itself sustain the whole play than the figure of Moby-Dick sustains the whole of Moby-Dick. In the Rawlsian play of liberties, some listed items represent motivic ideas, and some represent an indispensable supportive structure. Motivic are the two “fundamental” assurances: of a person’s admission, in full and adequate measure, to the direction of public affairs and of a person’s admission to a full and adequate range of processes, relationships, and activities involved, over a lifetime, in the formation, revision, and pursuit of an individual conception of the good, of the direction of one’s life and

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endowments. Indispensably supportive are the assurances of sufficient and secure space in which to get around and to exercise one’s faculties and capacities (liberty and integrity of the person); assurances against impediments needlessly, mistakenly, or mindlessly imposed (the rule of law); and assurances of open access to the conversation of humankind distant and close (freedoms of thought and association). Without the aid and support of association “with other like-minded citizens, the exercise of liberty of conscience is denied” (PL 313). That is the point, in Rawls, P.’s play, of freedom of association. Rawls, J., guided by Rawls, P., will not very likely see that point as engaged by bare relationships of provider and receiver of professional and commercial goods and services. Rather, the basic liberty of “freedom of association” will help the claimants in our test case only insofar as liberty of conscience (also) will. And so, again, we would we see the buck being passed up the line. And now, finally, we reach the line’s end. Liberty of conscience is where the buck stops. But of course it is a part of my point that the buck not only stops there; it is directed there. When the question is one of the scope of negative protection for action-freedom not covered by the political liberties (which is not, after all, exactly a negligible concern in a liberal constitutional conception), liberty of conscience is the lodestar that attracts all compasses. Liberty of conscience works here like due-process “liberty” in the TTM and “free development of personality” in the German counterpart. Rawlsian “liberty of conscience” is not limited to matters of religious faith, creed, and observance; it is not (as a reader might at first suppose) a mere “free exercise” clone. Thus does liberty of conscience emerge as the umbrella clause in Rawls, P’s list of basic liberties—as such to cover (Rawls, J., breathes his sigh of relief ) choices for suicide, at least in some circumstances. Really so? Whose conscience is rendered unfree by a legal prohibition on assistance of suicide? (Whose conscience is rendered unfree by a kidnapper’s credible demand for ransom on pain of torture of the innocent captive?) No one’s, exactly, but that’s plainly too strict a construction for the philosopher (or hence Justice) Rawls. He means, of course, to include in liberty of conscience not just freedom from brainwashing and mind control but the allowance of space in which to live out one’s conscientious convictions and decisions—to give them, in that way, expression and endorsement, thus claiming them as one’s own in the only way that can be fully and finally credible to oneself and others. The philosopher

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Rawls means to cover in what William Galston commends as “expressive liberty,” and James Fleming explains in terms of an “essential precondition” for deliberation in the pursuit of one’s conception of the good— namely, one’s secure anticipation of the prospect of conducting the pursuit once decided. So, for Rawls, P., liberty of conscience must—and it explicitly does— encompass “conduct” along with “belief ” (PL 311–312). In his liberal political conception, adoption of the motivating conception of persons as constitutively endowed with the moral powers prompts us to think of ourselves as affirming our way of life in accordance with the . . . exercise of our intellectual and moral powers. And this rationally affirmed relation between our deliberative reason and our way of life itself becomes part of our determinate conception of the good. . . . For this conception of the good to be possible we must be allowed . . . to fall into error and make mistakes within the limits established by the basic liberties. In order to guarantee the possibility of this conception of the good, the parties [in the original position] . . . adopt principles which protect liberty of conscience. (PL 313–314)

The office of liberty of conscience as an umbrella clause covering major, nonenumerated regulatory risks to freedom of action is now confirmed. “Conscience” extends to freedom of action. But maybe (as Rawls, J., must hope) not all freedom of action. Perhaps not insurance refusal. Perhaps only those parts of freedom of action required for “affirmance of a way of life in accordance with the exercise of our intellectual and moral powers.” But then, even so, why not insurance refusal? If there is a dimension of human dignity or respect-worthiness consisting in a person’s free and self-responsible formation and pursuit of a conception of the good, why does it not cover the choice to travel through life uninsured? That choice by an individual, as we have already noticed ourselves and as the state defending its law will surely say, is fraught with moral implications (see part II.E). Why, then, should it not itself count as an event in the development and exercise of the moral powers (including the freedom to make mistakes) that would qualify the case for Rawlsian heightened scrutiny? What is there in the Constitution, as written, to license Rawls, J.’s impending differentiation, in this respect, between the choice to terminate one’s life and the choice to refuse insurance?

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F. Deciding the Cases: Suicide, Insurance, FGM Perhaps that is not quite the right framing for the question Justice Rawls confronts. Given his abstract-originalist approach to the interpretation of this constitution, the question for him will be: On the basis of what construction of the motivating, abstract conception of justice, of which he takes the Constitution to be an expression, can he read sections 1 and 2 to point toward inclusion of end-of-life control but exclusion of insurance refusal from the set of action-choices that are to receive the most searching form of judicial protection against legislative restriction? Rawls, J., begins his answer: By the lights of Professor Rawls, a just society is one in which ordinary lawmakers conform to both of two principal constraints. One is a background-justice constraint: that they act at all times with a view to maintaining a fair background structure of liberties, opportunities, and means, within which to exercise one’s economic and other liberties and live with the results. The other is a basic-liberties constraint: that the lawmakers do not restrict any of certain, named basic liberties—not even for the sake of the background-justice constraint—except as may be required to maintain the fullness and adequacy for everyone of the scheme of basic liberties in combination, judged in terms of the scheme’s conduciveness to everyone’s full and adequate lifetime development and exercise of the moral powers. It follows, of course, that any substantive constitutional (“supreme”) law we may find in a putatively just society’s legal order is to be read insofar as possible in ways that are conducive to the regular legislature’s observance of those two constraints. Now, Professor Rawls also finds strong reasons why it serves the interest of justice to implement the basic-liberties constraint in the medium of a higher, “constitutional” law that will be directly controlling on ordinary lawmaking. Not so, however, for the background-justice constraint. It is not my task just now to go into those reasons but only to be aware of the resulting structure of the requirements imposed by Rawlsian justice on both constitutional lawmaking and ordinary legislation—in accordance with which I must now construe and give effect to sections 1 and 2 of our Constitution, in the two cases pending before me. Doing so, I can see that I must respond to a claim of unconstitutional legislative restriction of freedom of action by the following order of queries.

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First, section 2 requires me to see whether some credible reason of proper public concern supports the restriction in question. If “no,” I rule the restriction unconstitutional. If “yes,” I go on to . . . Second, section 1 requires me to see whether the restriction touches a listed basic liberty. If “no,” I rule the restriction constitutional. If “yes,” I go on to . . . Third, section 1 requires me to see whether the restriction serves to advance a full and adequate scheme of equal basic liberties for all, measuring the scheme’s fullness and adequacy in terms of its conduciveness to everyone’s lifetime prospects for full and adequate development and exercise of the moral powers.

Rawls, J., then proceeds to hold that the suicide restriction is unconstitutional because it restricts a basic liberty—liberty of conscience— without adequate necessitation from any basic liberty on the list. He accepts that a proper concern for the basic right of liberty and integrity of the person (1[f ]) can support regulation of the transactional framework for medical assistance of suicide, but he finds that a flat prohibition cannot meet the demand of section 1. Regarding the insurance mandate, Rawls, J., finds that it does not serve to protect any basic liberty in the way section 1 would require if insurance refusal were itself an exercise of a basic liberty. Rawls, J., further finds, however, that the latter premise does not hold. Liberty of conscience is the only item in section 1 that conceivably could cover acts of insurance refusal, but insurance refusal, says the justice, is not normally an exercise of liberty of conscience. (Rawls, J., allows for the possibility of a constitutionally required exemption for what he thinks would doubtless be a tiny band of narrowly speaking conscientious objectors to insurance.) Of course, our question still remains about why Rawls, J., feels justified in placing any freedom of action outside liberty of conscience once he gives that clause its umbrella status. But that is better left until after we have dealt with a third imaginable case—suggested by Koppelman’s worry (see part I.C)—of a challenge by concerned parents to a legislative prohibition of FGM, to which the broad staging (at least) of Rawls, J.’s expected answer should now seem apparent: First, there are credible reasons of proper public concern (for the preservation of a young girl’s options until she is sufficiently mature and experienced to make her own choices) to support a legislative prohibition of FGM not freely chosen by a woman of sufficient age.

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Second, such a prohibition will certainly, in many cases, act as a restriction of parental liberty of conscience. However, Third, the prohibition serves—directly and incontestably—as a safeguard for another liberty, also and equally basic, the “liberty and integrity of the person” of the child in the case. The prohibition thus qualifies on its face as an internal adjustment to the scheme of basic liberties: liberty restricted for the sake of liberty. It represents the lawmaker’s response to a question about whether a scheme including the prohibition or scheme without it is overall more conducive to everyone’s lifetime prospects for full and adequate development and exercise of the moral powers. With that much on the table, we can readily see how Rawls, J. might go on to conclude as follows: Allowing that opinions on such questions can reasonably differ, my task as judge is to satisfy myself that the legislature’s choice in favor of the prohibition is robustly defensible in the terms I have stated. I must conclude that it is. Where the ultimate concern is for the regime’s overall conduciveness to everyone’s lifetime prospects for development and exercise of the moral powers, the presumptive validity of laws against uninvited bodily invasion, alteration, or restraint is very strong. There is no less restrictive regulatory means, alternative to flat prohibition of imposition of FGM on a minor, to holding the minor’s lifetime options open. The prohibition is constitutionally sustained. Notice how Rawls, J., treats a general right to freedom from bodily violation and restraint as a fully first-class right no less to be respected and served than any other right in the list. No Rawlsian “moral powers” motif attracts him to do otherwise. Of course Rawls, J., does see such a general right (and who would not?) as having a crucial part to play in an overall regime of liberty devoted to securing the general conditions of each person’s development and exercise of the moral powers. But that does not make him doubt that “freedom and integrity of the person”—the right to the wholeness and mobility of one’s body—counts in itself as a full-scale basic right, regardless of whether the bodily impairment now at issue does or does not immediately obstruct an exercise of the moral powers. We shall see further below why Rawls, J., is right to take this unabashed, liberal-commonsensical view of “liberty and integrity of the person,” insofar as he means to be tracking Rawls, P. A second noteworthy feature of Rawls, J.’s decision is its depiction of Rawlsian heightened scrutiny in constitutional adjudication. The scrutiny is strict insofar as it demands to be shown a basic liberty (here, freedom and integrity of the person), other than the one restricted by the

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questioned law (here parental liberty of conscience), whose protection or advancement is served by that law. It is strict insofar as it demands a legislative choice that represents, in Rawls, J.’s words, a “robustly defensible” judgment about the preferable adjustment of the scheme, and so an absence of less-restrictive alternatives. Insofar as TTM-style “strict scrutiny” is more demanding than that, Rawlsian philosophy (supported by Fleming and McClain) begs to differ. It places legislatures under broadly stated obligations of justice and does not try to settle too much in advance of situated legislative deliberations.

III. IMPLEMENTING JUSTICE

A. Koppelman’s Worry Look at the matter from the standpoint of choice in Rawls’s original position. Rawls sets this up (as it were) as a game. The game is to choose a set of principles to regulate the basic structure of a future society. Each player is a trustee, required to choose strictly in the interest of exactly one citizen in that society. Players know that their respective citizens each hold a conception of the good, and each citizen’s conception of the good is presumed to contain a highest-order interest in the development and exercise of certain moral powers—including (recursively) a power of rational cognition, revision, and pursuit of a conception of the good (see part II.D). Players are not, however, allowed to know anything more about the content or character of their clients’ conceptions of the good. Nor may they know their clients’ class or status positions in whatever the basic structure of the future society is going to be. Players know that others in the future society, whose respective trustees are the other players in the game, will also have their own conceptions of the good along with the corresponding highest-order interests. Players know that the conceptions of the various citizens will differ sharply but also that the citizens typically will be unable to rule out one another’s conceptions as flatly wrong or out of bounds. Players know that the pursuits by the citizens of their differing conceptions of the good can easily bring them into practical conflict over enjoyment of social conditions and access to resources that can be assumed serviceable to any citizen’s pursuit of his or her conception of the good. Finally, there is a rule of the game that no proposed set of principles can be adopted without unanimous approval of all the trustees.

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Philosopher Rawls proposes that if there is some set of principles on which all the players in this game could agree, that set should prove acceptable to citizens in the here and now, judging reasonably and rationally, as foundational for the regulation of the basic structure of a constitutional-democratic society in modern conditions of ethical pluralism. He further proposes that all the players could agree on the two principles of justice as fairness along with their blackletter codicils (see part II.D). As an abstract-originalist constitutional interpreter, Rawls, J., considers himself bound by these propositions from Rawls, P. Parroting the first principle of justice as set forth in Political Liberalism’s blackletter, our imagined constitution’s section 1 guarantees not a laundry list of basic liberties but rather a “scheme” of (listed) basic liberties. Items schematically related retain their severalty insomuch as each has a distinct part to play within the scheme. So it is, as Rawls, J., has now found out, with the “scheme” of the first principle and, by inheritance, of our constitution’s section 1. Some listed items represent motivic values; some represent indispensable structural supports. “Liberty and integrity of the person,” as Rawls, J., sees, is required (in the conception of Rawls, P.) as an assurance of sufficient and secure space in which to get around and exercise one’s faculties and capacities. Does anything in that picture suggest an assignment of less than full, first-class weight to liberty and integrity of the person, if and when we find that assurance coming into immediate, practical collision with exerciseof-conscience claims so that one class has to be trimmed in the other’s favor? Does anything there point toward a routine subordination of A’s claim to bodily security and mobility to B’s contextually colliding exercise of conscience? (B’s conscientious determination to destroy saloons against the security rights of the operators and patrons?) I do not see what it would be. Concerned for everyone’s lifetime prospects for full and adequate development and exercise of the moral powers, we lay down a principle to guide future political decisions: exercises of liberty of conscience, we say, have strong presumptive claims to be respected. Prompted by our concern for those very same prospects of everyone, we lay down another principle, no less urgent: bodily mobility and integrity, we say, have strong presumptive claims to be respected. Anticipating situational collisions of those principles, we say: the necessary schematic adjustments in the laws are to be made with an overall view to everyone’s lifetime prospects for full and adequate development and exercise of the moral powers. (We do not say “such adjustments are to go in favor of the claim in the case that happens to have ‘conscience’ in its name.”)

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Well, you rejoin, “We get the point, but then what, after all, is Rawls, P., driving at when he has the original-position trustees specify, as a part of their agreement, that the fullness and adequacy of the scheme of liberties is to be gauged in terms of overall conduciveness to the development and exercise of the moral powers?” The answer cannot be that Rawls is devaluing interests of the body. To the contrary, his project is avowedly constructivist, aimed at showing how traditional liberal commitments— and those of course very saliently include bodily security and freedom from restraint—can be seen to emerge from a set of reflections that do not begin by assuming the primacy of those commitments in a thick conception of the good but rather start at a point meant to strike us as lying “further back.” However much that very statement of the project might place Rawls at odds with some other liberal-minded philosophers, it does appear to undercut any worry that Rawls-minded constitutional interpreters will or ought to be especially disposed to give short shrift to the body and its distinctive powers. Unless, that is, “short shrift” means that, in situational collisions of “conscience” concerns with “body” concerns, “conscience” gets an open chance to prevail. But what sort of liberalism would it be that took an opposite view? Consider a law that flatly outlaws nontherapeutic FGM throughout the jurisdiction, even when agreed to by women of mature age. How shall liberals respond? It is doubtless true that a political liberalism—dedicated to prescinding as far as possible from censoriousness toward any of the reasonable, thicker conceptions of the good that populate society—will hold such a law to a burden of persuasion, maybe heavier than some liberals would favor. But that, again, is a commitment quite distinct from a failure of regard for the body, its powers, and their place in human flourishing. The complaint against that placement of the burden—whether for better or for worse I do not here try to say—would be one of excessive political-liberal tolerance; it would not be a complaint about excessive political-liberal preciosity.

B. Two-Track Review Protocol We distinguish between choice of a relatively abstract, foundational set of principles for the regulation of society’s basic structure and a series of more situationally circumscribed, instrumental choices for the administration of a chosen conception in relevant social circumstances. When

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faced with a choice among competing, proposed sets of foundational principles, a comparison of the competitors’ prospects for successful implementation in any reasonably likely set of circumstances may weigh in the balance. But once the foundational conception is settled, on whatever grounds, then the more situationally circumscribed, mainly instrumental questions of best administration must always impend. With regard to Rawls’s principles, for example, choices for best implementation might (depending on the circumstances) go for or against installation of judicial review of the constitutionality of laws; they might go for or against inclusion of a catch-all “liberty” clause in a written constitution; they might even go for or against a written and justiciable constitution. Suppose the choices do go in favor of all of those (as Rawls is happy to allow), thus giving the judiciary a role to play in setting the bounds to constitutionally protected freedom of action. Our question at this point is about how, if at all, implementation of the Rawlsian foundational conception might be best served by a two-track scheme of judicial review of claims to protection for freedom of action. The foundational principles commit to a scheme of equal “basic” liberties, meaning all and only those liberties named in Rawls’s or some comparable list, with no liberty in the scheme to be limited except for the sake of the fullness and adequacy of the scheme. That sufficiently explains a constitutional prescription for a particular form of judicial scrutiny of laws restricting the basic liberties, aimed at making sure that all limitations do indeed fall within the allowed exception. It would not, however, explain why courts should be affirmatively proscribed from applying the same demand to laws curtailing nonlisted, residual liberties. For suppose the constitution, to the contrary, directed the courts to set aside any limitation on wide freedom of action not shown to be required for the sake of the scheme of basic liberties. What, in the sight of justice as fairness, would be wrong with that? If nothing, then there is nothing in justice as fairness to match with the TTM’s prescription for two-track review. Political Liberalism does not, so far as I am able to see, attempt a full and express account of why judicial review of restrictions on freedom of action might best take the two-track form, in which a relatively relaxed review of mine-run complaints of infringements on freedom of action is not only permitted but directed (as by section 2 of our imagined Rawlsian constitution). The book suggests that the parties in the original position will do well to limit the list of basic liberties to a relative few whose cores are well and widely understood and agreed on, so that when questions

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arise about whether some governmentally imposed limitation can be justified as for their sake, more or less crisp and convincing, thus confidencesustaining, answers can be given, and endlessly debated conflicts of basic liberties will not too often arise (PL 227–230, 296–297). But these do not seem to be decisive reasons against letting the rest of freedom of action also have the benefit of protection against restriction except as required for the sake of the basic liberties. Think about the insurance mandate. What basic liberty, of whom, is at risk from allowing people to go around uninsured? The answers, immediately apparent, are “none” and “no one’s.” Why not, then—we are liberals after all—honor and protect such choices? This question sends us back to the blackletter for one last consultation. “No priority is assigned to liberty as such, as if the exercise of something called ‘liberty’ has a preeminent value and is the main if not the sole end of political and social justice” (commentary D, above part II.D). It does not say that freedom of action, just as such, is a false or even a negligible value, only that it is not a “prior” or “preeminent” value or “the main” end of justice. That wouldn’t yet state a reason of justice for an affirmative bar against searching judicial scrutiny—say, for proportionate justification— of laws limiting residual freedom of action. Some commentators might find such a reason of justice in a concern about withdrawing too much decision space from open political contestation—in a due regard, as we might say, for the liberties of the ancients or for the dignity of legislation. It is far from clear that Rawls could or would go along. Yet Rawlsian justice must certainly incline constitution writers against an invitation to courts to invalidate whatever limits on wide freedom of action they find not to be required for the sake of the basic liberties. What the parties choose in the original position is, after all, a conception of justice composed not just of the prioritized scheme-of-liberties principle but of that together with the background-justice principle. It is not only the scheme of equal basic liberties that the parties prize but the fair value of that scheme to all of those to whom it is guaranteed. To that end and others, the parties adopt the second principle, in effect directing the future lawmakers to see faithfully to the establishment and maintenance of a set of background social and economic arrangements adequate and suitable, in that society’s circumstances, to maintain conditions of fair equality of opportunity, or what Rawls also calls “background justice” (PL 229). Now, if no liberty—no freedom of action—could ever be restricted except when shown to be necessary for the sake of the basic liberties, the resulting hindrance to the energetic pursuit of fair background justice would be unacceptable to a Rawlsian view. From this consideration it

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might even follow—and here is this essay’s most radical suggestion—that if constitutional protection for a certain class of liberties (liberties of tax refusal, let’s say) is found to be especially detrimental to the vigorous pursuit of background justice, that would count heavily against a classification of that sort of liberty as “basic” or as falling under the umbrella of liberty of conscience—not in itself conclusively, of course, but as a factor in the judgment. So that, then, is a reason why, in a regime of Rawlsian justice, twotrack review is not only permitted but positively indicated. Justice demands heightened scrutiny of infringements on liberties classed as basic, allowing such infringements only when shown to be required for the sake of basic liberty. But justice also demands the relentless pursuit of background justice, and the only way to keep the two demands in equipoise is to refuse to treat the full range of freedom of action as basic and thus as limitable only for the sake of liberty. Which is not to say that freedom of action taken just in itself or as such is a false or negligible political value. It is rather to say that justice encompasses more than one true political value. Liberty and the worth of liberty—liberty and background justice—are not to be confused (PL 325–327). Justice means getting the order of sacrifice as close to right as it can be. (A first task of political philosophy, Rawls wrote, is to narrow differences over how best to deal with the competing, conflicting claims of liberty and equality in the tradition of democratic thought [JF 2].) The priority of basic liberty is what and is all the carefully crafted two principles call for, and now we are seeing a distinct reason why. Rawlsian justice is not libertarian; it is liberal: it is social-liberal. Not saying you should, but if you did want to find in Rawls’s political philosophy some underpinning for the TTM’s partition of liberties into leading and ordinary, you must look into a place where you may not have thought initially to look. That place is the second principle of justice—or rather, more precisely, the second principle in concatenation with the first. In a Rawlsian well-ordered society, two-track scrutiny is a device for holding the two principles of justice in equipoise.

notes 1. U.S. Constitution, Amendments 5, 14. 2. Compare Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) (opinion of Justices O’Connor, Kennedy, and Souter).

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3. See Ferreira v. Levin NO [1995] ZACC 13; 1996 (1) SA 984 (Constitutional Court of South Africa), para. 171, suggesting such a restrained construction of the South African Constitution’s guarantee to everyone, in §12(1), of “freedom and security of the person.” It must be noted, though, that this suggestion regarding the freedom clause was explicitly tied to the South African constitution’s inclusion of a striking number of additional guarantees that would cover a great deal, quite possibly all, of the expected scope of constitutional protection for freedom of conduct. 4. 6 BVerfGE 32 (Federal Constitutional Court of Germany, 1957) (“Elfes Case”). An English translation may be found at http://www.iuscomp.org/gla/judgments /tgcm/velfes.htm. In addition to “free development of personality,” the freedoms listed in the Basic Law are faith, conscience, and creed; expression; marriage and family; religious education for one’s children; assembly; association; movement; occupation; and property. 5. See Dieter Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” University of Toronto Law Journal 57 (2007): 383–397. 6. Constitution of South Africa (1996), §36(1), provides that “the rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.” The process of reading a general proportionality test into this provision began with S v. Makwanyane, [1995] ZACC 3; 1995 (3) SA 391. 7. See James E. Fleming and Linda C. McClain, “The Myth of Strict Scrutiny for Fundamental Rights,” in Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge, Mass.: Harvard University Press, 2013), 237–272. 8. See, e.g., James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago: University of Chicago Press, 2006); Linda C. McClain, The Place of Families: Fostering Capacity, Equality, and Responsibility (Cambridge, Mass.: Harvard University Press, 2006). 9. See Fleming and McClain, “The Myth of Strict Scrutiny,” 148–151. 10. John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (New Haven, Conn.: Yale University Press, 1980), 58. 11. See generally Richard H. Fallon Jr., Implementing the Constitution (Cambridge, Mass.: Harvard University Press, 2001). 12. See Andrew Koppelman, “The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?” Review of Politics 71 (2009): 459–482. 13. Ibid., 468. 14. Section 1 is written in terms of the canonical list of basic liberties given by PL 291. I have somewhat rearranged their ordering in the list for reasons of my own expository convenience. Inclusion of the bracketed items, e1 and e2, may be proposed for reasons briefly mentioned below. 15. See PL 227–230. On Rawls’s reasons for this advice of forbearance (mainly) to constitutionalize the requirements of the second principle, see Frank I. Michelman, “Poverty in Liberalism: A Comment on the Constitutional Essentials,” Drake Law Journal 60 (2012): 1014–1019; Frank I. Michelman, “Justice as Fairness,

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21. 22.

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Legitimacy, and the Question of Judicial Review: A Comment,” Fordham Law Review 72 (2004): 1407–1420. The treatment of these matters in JF §§13, 30, and 32 is materially identical with that in PL. Since one person’s choice to go without insurance does not appear to impair any basic liberty of anyone else, the insurance mandate must seemingly fail the test of section 1 if covered by that section at all—a result that Rawls, J., hopes to avoid. See Lon L. Fuller, The Morality of Law, rev. ed. (New Haven, Conn.: Yale University Press, 1964), 33–90. Compare H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford University Press, 1994), 193–200 (on “the minimum content of natural law”). Note that the mandate does not require anyone ever to consume medical goods and services. It only requires that you buy insurance to fund such consumption if and as you choose. Compare the South African position described above at the text preceding note 3. See “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books 44, no. 5 (March 27, 1997) (introducing and then reprinting an amicus brief on behalf of six philosophers, supporting a fundamental constitutional right to freedom of access to medical assistance of suicide), http://www.nybooks.com/articles/1237. John Rawls was one of the philosophers subscribing to the brief. The others were Ronald Dworkin, Thomas Nagel, Robert Nozick, Thomas Scanlon, and Judith Jarvis Thomson. The brief could not be more explicit about the point in question: Certain decisions are momentous in their impact on the character of a person’s life: decisions about religious faith, political and moral allegiance, marriage, procreation, and death, for example. Such deeply personal decisions pose controversial questions about how and why human life has value. In a free society, individuals must be allowed to make those decisions for themselves, out of their own faith, conscience, and convictions. . . . Petitioners . . . insist that the present cases can be distinguished [from Cruzan, a case supporting a constitutional right to refuse bodily administration of life-sustaining treatment. Cruzan, say the petitioners,] was limited to a right to reject an unwanted invasion of one’s body. . . . The liberty interest at stake in Cruzan was a more profound one. . . . If Cruzan implies a right of competent patients to refuse life-sustaining treatment, that implication must be understood as resting not simply on a right to refuse bodily invasions but on the more profound right to refuse medical intervention when what is at stake is a momentous personal decision, such as the timing and manner of one’s death. In her concurrence, Justice O’Connor expressly recognized that the right at issue involved a “deeply personal decision” that is “inextricably intertwined” with our notion of “self-determination.”

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the priority of liberty: rawls and “tiers of scrutiny”

23. See William A. Galston, “Liberty, Moral Pluralism, Political Pluralism: Three Sources of Liberal Theory,” William & Mary Law Review 40 (1999): 869–907. 24. James E. Fleming, Securing Constitutional Democracy: The Case of Autonomy (Chicago: University of Chicago Press, 2006), 89, 100. 25. See PL 227–230 for Rawls’s denial of “constitutional essential” status to most of the requirements of the second principle of justice, including fair equality of opportunity. 26. See Frank I. Michelman, “Rawls on Constitutionalism and Constitutional Law,” in The Cambridge Companion to Rawls, ed. Samuel Freeman (Cambridge: Cambridge University Press, 2003), 409–420. 27. Compare Rawls’s consideration of “stability” in the full justification of the choice of justice as fairness. See, e.g., PL at 64–65. 28. See Michelman, “Rawls on Constitutionalism and Constitutional Law”; Samuel Freeman, “Original Meaning, Democratic Interpretation, and the Constitution,” Philosophy and Public Affairs 21 (1992): 3–42. 29. See Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999); C. Edwin Baker, “Rawls, Equality, and Democracy,” Philosophy and Social Criticism 34 (2008): 203–246. 30. That might, for him, smack too much of a special and controversial view of the good for humankind (e.g., as consisting in exercises of “public freedom”) to figure in an overlapping liberal consensus. A “political” liberalism does better, he says, to limit its justification for the priority of the political liberties to the service these liberties provide in the total scheme as “essential instrumental means to secure the other basic liberties.” PL 399. 31. For a more elaborate development of this idea, see JF 50–54, 135–140. 32. See United States v. Lee, 455 U.S. 252 (1982), where the Supreme Court rejected an undoubtedly conscientious tax refuser’s demand for exemption.

INDEX

Ackerman, Bruce, 77, 110 Adorno, Theodor, 52 Anglicanism, 11 atheism, 2, 11, 13, 37, 132, 133 Audi, Robert, 55 autonomy, 19, 25, 93, 123, 176 background culture, 8, 15, 32, 33, 37, 38, 43, 44 Baier, Kurt, 139, 146 Barry, Brian, 139, 147–48 basic liberties, 6, 151–52, 153, 175, 177, 179–81, 183–93, 195, 197–98, 200 basic structure, 8–9, 30–31, 53, 55, 60, 76, 88, 108, 153, 168, 181–83, 187, 194, 195, 196 Brooks, Thom, viii, 55, 139, 166–67, 170, 173 Buchanan, Allen, 111, 112 Buddhism, 2, 37, 49

capabilities approach, viii, 140, 155–66, 170, 171–72, 173 Catholicism, 11, 14, 20, 25, 29, 30, 34, 54, 87, 95, 112, 143, 171 Chambers, Simone, 82 children, 3, 31, 40, 42, 43, 44, 54, 68, 179, 180, 193, 200 Christianity, 2–3, 12, 24–25, 26, 27, 48, 97, 114, 121, 122–23, 133 circumstances of justice, 160 citizenship, viii, 31, 32, 40, 58, 61, 65, 68, 70, 86, 128, 129, 130, 153, 154 civil society, 32, 47 comprehensive doctrine: reasonable, 1, 6–7, 9–10, 12, 15–17, 19, 22–23, 26–30, 32–33, 34, 35, 38–39, 40, 47, 48, 52, 53, 63, 78, 81, 85, 86, 91, 94, 98–99, 105, 132, 139–45, 147–50, 154, 157, 158, 163–66, 167–68, 171; unreasonable, 1, 15, 22, 27, 167

204

Index

Confucianism, 2, 37, 114 constructivism, viii, 21, 58, 196 contractarianism, 58, 59, 155, 160, 165, 166

God, 10, 11, 36, 37, 54, 118, 125, 127, 129, 131, 134 Greenawalt, Kent, 139, 149 Gutmann, Amy, 55

democracy, 2, 3, 16, 26, 31, 32, 37, 45, 46, 48, 50, 62–63, 65–66, 70, 71, 87, 94, 101, 160 democratic governance, 92–94, 96, 100–3, 105 difference principle, 32, 37, 82, 84, 111, 149, 159 dignity, 4–6, 49–50, 52, 114, 118, 125, 131, 157, 160, 161, 171, 176, 187, 190, 198, 200. See also respect diversity, 2, 3, 116, 120, 121, 161 Dreben, Burton, 26, 56, 76, 77–81, 87, 89, 110 Du Bois, W. E. B., 44 due process, 176, 189 duty of civility, 20, 28, 31, 32, 33 Dworkin, Ronald, 80, 201

Habermans, Jürgen, 21, 32, 34, 47, 65, 71, 95, 102, 107, 111 Hart, H. L. A., 201 Hinduism, 2, 3, 37, 42, 49 Hobbes, Thomas, viii, 10–1, 169 Horkheimer, Max, 52 human rights, 5, 45, 49–50, 56, 67, 130, 156

Eberle, Christopher J., 37, 38, 39, 55 education, 16, 40, 42, 44, 45, 125, 200 equality, 6, 13, 17–19, 29–30, 44, 49–50, 82, 140, 141, 142–44, 146, 150–53, 156, 160, 161, 181, 183, 187, 198–200, 202; sex equality, 29 Estlund, David, 78, 79, 111 fair equality of opportunity, 151, 181, 183, 187, 198, 202 fair terms of cooperation, 4, 10, 23, 47, 49, 51, 64, 144 female genital mutilation, 179 Fleming, James, 177, 190, 194 freedom of action, 175–78, 181, 183, 185–86, 190, 191, 192, 197–99 freedom of association, 16, 152, 181, 184, 188, 189 Free Exercise Clause, 49 free faith, 12 Freeman, Samuel, 55, 56, 173 Fuller, Lon, 186

immigrants, 68 impartiality, 5, 186 Islam, 2, 3, 11, 20, 30, 54, 114 Judaism, 2, 3, 11, 20, 25, 29, 30, 31, 43, 48, 54 justice as fairness, 21, 65, 71, 74, 75, 77–85, 90–92, 94–95, 97–101, 103–5, 110, 148, 152, 160, 162, 163, 182, 187, 195, 197, 202 Kant, viii, 2–5, 10, 13–16, 21, 40–42, 52, 56, 57, 67, 69, 71, 73, 77, 78, 81, 83, 114, 117, 118, 121, 122, 123, 125 Keohane, Robert O., 112 King, Martin Luther, Jr., 35, 38, 41, 43 Kleingeld, Pauline, 167, 173 Klosko, George, 139, 166 Koppelman, Andrew, 179–80, 192, 194 Larmore, Charles, 4, 6, 27, 52, 53, 80, 168 legitimacy, viii, 74–77, 79–83, 85, 87–90, 92, 94–98, 100–9, 111, 112, 129, 145 liberal principle of legitimacy, 74, 83, 87, 89, 90, 100–1, 103, 145 libertarianism, 8, 149, 176, 199 liberty of conscience, 32, 45, 53, 86, 181, 184, 187, 188–90, 192, 193, 194, 195, 199

Index Locke, John, viii, 10–16, 41, 47, 53, 57, 123, 136 Maffetone, Sebastiano, 167 Maritain, Jacques, 50 May, Simon Cabulea, 78, 110 McClain, Linda, 177, 194 McClennen, Edward, 139, 146, 166 McLean, Justice John, 126, 130, 131, 132, 134 Michelman, Frank I., viii, 169, 170, 173, 200, 202 Mill, John Stuart, 19, 123, 136 modus vivendi, 3, 9, 17, 27, 99, 144 moral powers, 7, 153, 162, 164, 179–81, 184, 187–88, 190–95 Mormonism, 29, 30 Nagel, Thomas, 137, 201 Nehru, Jawaharlal, 42 Nozick, Robert, 130, 136, 178, 201 Nussbaum, Martha C., vii–viii, 52–54, 56, 155–60, 163, 165–67, 170, 171, 173 Okin, Susan Moller, 21, 26, 27, 29–31, 54 O’Neill, Onora, viii, 71, 72, 167 original position, 5, 8, 18, 59–61, 64, 71, 77, 80, 88, 93, 104–5, 110, 168, 190, 194, 196–98 overlapping consensus, viii, 9, 17, 18, 21–22, 27, 31, 34, 40, 44, 47–48, 50–51, 56, 81, 84, 90–92, 105, 117–22, 139–50, 152, 154, 156–58, 163–65, 167, 168, 170, 171 Plato, 118, 119, 135, 136 political conception, 5–10, 12, 15–17, 19–21, 25–36, 38–41, 43–48, 53, 56, 65, 74, 78, 81, 84–86, 91, 97–98, 105, 141–45, 147–48, 150, 163, 168, 169, 172, 182, 190 political liberalism, 1–215 political stability, vii, viii, 10, 13, 15, 28, 41, 42, 44, 56, 139–42, 145–55, 157, 159–60, 162, 164–66, 169, 170, 173

205

primary goods, 7, 83, 152–54, 156–65, 171, 172, 173 principles of justice, viii, 6, 8–9, 17, 18, 57–61, 63, 64, 66–68, 70, 71, 73, 74, 76–77, 79, 81, 83, 87, 90, 91, 92, 94, 95, 100, 104, 109, 146–48, 150–53, 155, 156, 164, 168, 172, 181, 183, 187, 195, 199 priority of liberty, viii, 179–80, 184 Protestantism, 12, 14, 20, 25, 31 psychology, 14, 40–42, 44, 56, 127 public justification, 28, 37, 74, 78, 82, 143–44 public reason, viii, 2, 9, 20–21, 23–24, 31–32, 34–39, 41, 43, 52, 56, 61–66, 68, 71–72, 90, 92–93, 95, 98, 101, 112, 113–14, 116, 118–36, 139, 143–46, 148–49, 152, 167, 168; nonpublic reason, 64, 122, 143 punishment, 14, 141, 143, 166, 167, 170 Puritans, 11 Quaker, 39, 87, 95, 102, 103, 108, 111, 112 Quine, W., 61 Quinn, Philip, 35, 55 rationality, 64, 128–29, 131–32; irrationality, 22, 25 Rawls, John, works: “The Basic Liberties and Their Priority,” 21; “The Idea of Public Reason Revisited,” 34, 38, 39, 144, 166, 168; Justice as Fairness, 54, 90, 112, 140, 142, 144, 145–46, 150–53, 162–63, 166–71, 199, 201, 202; “Justice as Fairness: Political not Metaphysical,” 61, 64–65, 71, 84, 110, 168; The Law of Peoples, 20, 45, 50, 58, 95, 122, 129, 132, 144, 166, 168, 169, 173; A Theory of Justice, vii, 2–8, 11, 13, 16–8, 21, 40, 41, 45–47, 52–54, 56, 57–61, 63–64, 71, 73–85, 87–88, 90–96, 100, 104, 106–112, 121, 139, 140, 147, 151–53, 156, 166, 168–71 Raz, Joseph, 19, 123, 136

206

Index

reasonable comprehensive doctrine. See comprehensive doctrine reasonable pluralism, vii, 22, 53, 75, 86, 93, 139–40, 142–43, 145–48, 150, 152, 154, 156, 163–64, 167 reciprocity, 3, 6, 11, 15, 32–34, 36, 45, 51–52, 55, 65, 144, 150–52, 170 recognition, 10, 23, 55, 75, 100, 151–52, 156, 170 Reidy, David, 78–79, 110 reflective equilibrium, 46, 60–61 religion, 2, 11–15, 17–20, 24, 27, 29–31, 34–36, 41, 45, 48, 54, 64, 95, 98, 176–77 religious pluralism, 11, 16, 49 respect, 2–10, 12–16, 19–20, 23, 25–30, 32–33, 36–43, 45, 49, 51–56, 67, 70, 72, 93, 101, 117, 118, 121, 122, 128, 129, 139, 141–42, 144, 145, 150–54, 156, 159, 163, 166, 172, 177, 178, 181–82, 187, 190, 193–95. See also dignity Richardson, Henry S., 52, 173 Rousseau, Jean-Jacques, viii, 10, 13–15, 41, 57 Sandel, Michael, 139, 149, 166, 169 Scanlon, T. M., 167, 171, 201 Scheffler, Samuel, 166, 173 Sen, Amartya, 158–63, 165, 170, 171–73

social contract, 13, 14, 57–58, 70, 155, 160 social minimum, 32, 93, 140, 150, 152– 59, 161–62, 164–65, 170, 171 stakeholding, 170 Taoism, 2, 37 Thompson, Dennis, 55 toleration, 1, 10–16, 41, 42 47–49, 56, 123 torture, 117, 118, 122–25, 130, 131, 134, 136, 189 U.S. Constitution, 11, 182, 199 Utilitarianism, 2, 5, 8, 16, 34, 126 Waldron, Jeremy, viii, 110, 136, 137, 202 Weithman, Paul, viii, 36–37, 52, 55, 170 well-ordered society, 21, 34, 41–43, 73, 74, 76–79, 81–84, 86, 90–95, 97–99, 101, 103–7, 109–11, 140, 144, 199 Wenar, Leif, 139, 148, 149, 150, 166, 167, 169, 170 Williams, Bernard, 73, 74, 76, 82, 109, 173 Williams, Roger, 53–54 Wolterstorff, Nicholas, 36, 55 Young, Iris Marion, 139, 166